Ganas v. Tselos

• Decision Date: 05 April 1932
• Docket Number: Case Number: 20282
• Citation: 11 P.2d 751,157 Okla. 107,1932 OK 252
• Parties: GANAS v. TSELOS.
• Court: Oklahoma Supreme Court

1932 OK 252

11 P.2d 751

157 Okla. 107

GANAS v. TSELOS.

Case Number: 20282

Supreme Court of Oklahoma

Decided: April 5, 1932

SYLLABUS

¶0 1. Pleading--Statutes and Decisions Liberal in Permitting Amendments.

The statutes, and also the decisions of the courts of this state, are extremely liberal in permitting amendments to pleadings so long as such amendments are in furtherance of justice, and amendments which even change the cause of action may be permitted, provided they do not substantially change the plaintiff's claim.

2. Same--Appeal and Error--Harmless Error in Permitting Amendment.

The amendment of a petition, which does not change substantially the claim of the plaintiff, may be made pursuant to the provisions of section 318, C. O. S. 1921, and an error in permitting such an amendment is not sufficient for reversal of the judgment rendered in the cause, where the error does not affect the substantial rights of the defendant. Section 319, C. O. S. 1921.

3. Indians--Contract for Assignment by Lessee of Interest in Restricted Departmental Oil Lease--Lessee not Permitted to Defeat Claim for Consideration Paid by Assignee on Ground That Secretary of the Interior Failed to Approve Contract.

A lessee of a restricted departmental oil and gas mining lease may contract for the sale and disposal of an interest therein under such terms and conditions as he might contract in relation to a commercial oil and gas mining lease, and where the consideration therefor has been paid in whole or in part, the lessee will not be permitted to assert that his contract was void for want of the approval of the Secretary of the Interior and thereby defeat a claim for the consideration paid to him or for his use and benefit.

4. Frauds, Statute Of--Contract Taken Out of Provisions by Partial Performance.

Where a contract within the statute of frauds is fully or partially performed, the same is thereby taken out of the provisions of the statute and is enforceable.

5. Oil and Gas--Contract by Lessee to Assign Half Interest in Lease--Refusal of Lessee to Perform--Liability to Assignee in Accounting Regardless of Character of Relationship of Parties.

Where the owner of an oil and gas mining lease contracts with another to deliver an assignment of one-half interest in the oil and gas mining lease when the other pays for the development of the property and otherwise an amount equal to the amount which the owner of the lease has invested therein, and the owner thereafter refuses to comply with his agreement, it is immaterial whether the relationship between the parties is that of copartners or joint adventurers, and the owner of the lease will be liable in an accounting.

6. Frauds, Statute Of--Parol Agreement for Sale of Oil Lease Enforced Where Vendee Paid Price and Took Possession.

A parol agreement for the sale of an oil and gas lease will be enforced by the courts where the vendee has paid the purchase price, in whole or in part, and has taken possession, in good faith, of the premises with the knowledge and consent of the owner.

7. Action--Character of Action Determined by Nature of Grievance Rather Than by Form of Petition.

When the facts are plainly and distinctly stated, the character of an action is to be determined by the nature of the grievance rather than by the form of the petition, having regard, first, to the character of the remedy such facts indicate, and second, to the most complete and ample redress which upon the facts stated the law affords.

8. Judgment Sustained.

Record examined and held: The judgment of the trial court is not against the clear weight of the evidence and is not contrary to law.

Appeal from District Court, Osage County; Jesse J. Worten, Judge.

Action by George Tselos against John Ganas. Judgment for plaintiff, and defendant appeals; plaintiff filing cross-appeal. Affirmed.

Biddison, Campbell, Biddison & Cantrell, Wilson & Duncan, and John C. Gekas, for plaintiff in error.

Leahy, MacDonald, Maxey & Files, for defendant in error.

ANDREWS, J.

¶1 This is an appeal from a judgment of the district court of Osage county in favor of the defendant in error, the plaintiff in the trial court, against the plaintiff in error, the defendant in the trial court. Hereinafter the parties will be referred to as they appeared in the trial court.

¶2 The action was for the recovery of a money judgment in the sum of $ 13,014.69. At the time of the filing of the petition, the plaintiff filed an affidavit for attachment in which he averred that the defendant was a nonresident of the state of Oklahoma; that the cause of action arose out of contract; that it arose wholly within the limits of the state of Oklahoma; that the defendant was about to convert his property, or a part of it, into money for the purpose of placing it beyond the reach of his creditors, and that the defendant had executed a conveyance of certain property with the intent to dispose of the same and with the intent to hinder, delay, and defraud the plaintiff in the collection of his claim against the defendant. An order of attachment was issued and served by a levy on certain oil and gas mining leases and the equipment thereon. The defendant executed a bond to dissolve the attachment, and it was dissolved. The defendant filed an answer to the petition of the plaintiff and a cross-petition against the plaintiff in which he prayed for judgment against the plaintiff in the sum of $ 48,007.58. The plaintiff then filed an amended petition. A motion of the defendant to strike the amended petition and to dismiss the action, upon the ground that the amended petition was a substantial departure in the plaintiff's cause of action, was overruled. The defendant then filed a motion to make the amended petition more definite and certain and to strike. His motion was sustained by the court and the plaintiff filed a second amended petition. The defendant filed a demurrer to the second amended petition on the ground that it failed to state sufficient facts to constitute a cause of action against the defendant. That demurrer was overruled. The defendant then filed an answer to the second amended petition of the plaintiff and a cross-petition against the plaintiff. The plaintiff filed a reply. A jury was waived and the cause was tried to the court. The trial court rendered judgment for the plaintiff in the sum of $ 6,414.12, which amount, on the motion of the plaintiff, was changed to $ 7,125.41 for the correction of an error in the summary of the court's finding. Each party filed a motion for new trial and each motion was overruled. The defendant then appealed to this court and the plaintiff filed herein a cross-appeal.

¶3 The defendant contends that the second amended petition should have been stricken and the action dismissed for the reason that the second amended petition was a material departure from the first petition. In the first petition the plaintiff alleged, among other things, that from about April 20, 1924, to July 31, 1926, at the special instance and request of and for the benefit of the defendant, the plaintiff paid out certain sums of money for supplies, labor, taxes, development equipment, and operations of certain oil and gas mining leases therein described, an itemized statement thereof being attached thereto. In the second amended petition the plaintiff, among other things, alleged an oral agreement between the plaintiff and the defendant whereby they agreed to operate and develop the same oil and gas mining leases; that the defendant had invested therein approximately $ 26,000; that the plaintiff should manage, operate, and develop the property and from time to time pay either to the defendant or for the expenses, operation, and improvement of the property such sums as he could provide; that when the amount paid by the plaintiff to the defendant and for the expenses of development, operation, and improvement of the property, together with the proceeds from the oil runs therefrom paid to the defendant, should amount to the sum which the defendant had invested in the property, the defendant would then assign to the plaintiff an undivided one-half interest in the leasehold premises. The property involved was the same in each case, except that the second amended petition included a leasehold acquired from one Louis Friedman.

¶4 In Wynnewood Cotton Oil Co. v. Moore, 54 Okla. 163, 153 P. 633, this court held:

"The statutes, and also the decisions of the courts of this state, are extremely liberal in permitting amendments to pleadings so long as such amendments are in furtherance of justice, and amendments which even change the cause of action may be permitted, provided they do not substantially change the plaintiff's claim."

¶5 The pleadings relate to the same subject-matter and to the same transaction. Therein is sought to be recovered the same amount of money for the same wrong. The relationship of the parties and the complex situation arising from their dealings with each other made it possible for many causes of action to be stated in the pleadings without materially changing the claims against each other. The relationship arose, in the language of Mr. Biddison, one of the attorneys for the defendant, "by virtue of an almost hypnotic influence" which the plaintiff seemed to have over the defendant. In the language of the same attorney, "that influence grew out of a relationship which is recognized by the Greek people on account of the participation of one in certain marital and marriage and family relations." That the defendant had invested the sum of $ 26,000 in oil and gas mining leases, of the operation of which he knew nothing, is admitted, and that the plaintiff operated the property and advanced large sums of money for the operation thereof cannot be denied. Whether the labor performed by the plaintiff and the money advanced by him constituted claims of quantum meruit and quantum valebat, or a claim under an oral contract, it was the...