Guss v. Nelson

• Decision Date: 02 September 1904
• Parties: GUSS et al. v. NELSON.
• Court: Oklahoma Supreme Court

78 P. 170

14 Okla. 296, 1904 OK 71

GUSS et al. v. NELSON.

Supreme Court of Oklahoma

September 2, 1904

Syllabus by the Court.

1. Where a contract is entered into at Guthrie, Okl., for the purchase of certain shares of stock of various mining companies with offices and place of business at Ft. Scott Kan., the contract providing that it includes the delivery of the seals and all other records belonging to each of the companies, and a payment of $500 is made on the purchase price, which payment is to be considered as an option on all of said property until the 4th day of March, 1901, at which date the parties are to pay the vendor an additional sum of $4,500, or in lieu thereof turn back to the vendor all the property delivered by him, held that, in case the purchasers elect to rescind and turn back to the vendor the property purchased under the option given them in order to entitle them to the benefit of such option, they must notify the vendor within the time given of their election, and must return or offer to return all the property, certificates of stock, and records which were received by them.

2. Where such contract is entered into, and the purchasers on the day prior to the expiration of their option, at a meeting held in Guthrie, decided among themselves to rescind, and although they knew the address of the vendor, because of the vendor not being a resident of the territory of Oklahoma or having a place of business in the city of Guthrie, placed the certificates of stock in the Guthrie National Bank subject to the order of the vendor, and thereafter placed to his credit in such bank all the income received from the royalties of the property, held not to be a compliance with the terms of the contract of rescission and return of property which contract provided that, in case the purchasers should elect to rescind, they should "turn back to the vendor all the property delivered by him."

3. Where at the conclusion of a trial had before the court without a jury the court orally reviews the evidence, and expresses its opinion upon the law and the facts involved in the case, and where there are no special findings of fact and conclusions of law asked for, and where the findings and judgment of the court are embodied in a journal entry, the oral opinion expressed by the court performs no office in a case-made, and cannot be considered by this court on appeal from a judgment of the trial court.

Error from District Court, Logan County; before Justice Jno. H Burford.

Action by J. T. Nelson against U. C. Guss and others. Judgment for plaintiff, and defendants bring error. Affirmed.

John D De Bois and Cotteral & Horner, for plaintiffs in error.

W. R. Biddle, George S. Green, and Selwyn Douglas, for defendant in error.

PANCOAST J.

Action commenced in the district court of Logan county by the defendant in error against the plaintiffs in error to recover the sum of $4,500 upon the following contract:

"Memorandum of agreement made and entered into this 28th day of May, 1900, to wit, as follows: J. T. Nelson agrees on his part to turn over 25 per cent, of the capital stock of the following coal companies located in the Creek Nation, to wit: Sapulpa, Choctaw, Catoosa, Wewoka. Red Fork, Neyaka, Concharty, Tulsa, Car Creek and Broken Arrow Mining Companies, to the following persons: U. C. Guss, W. H. Gray, F. H. Greer and J. W. McNeal.

"The consideration of the delivery under which the above listed stock and other stock as hereinafter described is as follows: This also includes the delivery of the records belonging to each of said above named companies, the seals and all other records that in any way belong to any of said companies. A payment of $500 is to be made in cash upon delivery of the above named property and additional property in the way of stock here inafter listed. The $500 is to be considered an option on all said property until the 4th day of March, 1901. At that date the above named parties are to pay to Nelson an additional sum of $4,500.00 (Four thousand five hundred dollars) or in lieu thereof to turn back to said Nelson all the property delivered by him. In addition to the above mentioned 25 per cent. of capital stock aforesaid, which the said J. T. Nelson represents he owns in his own right, he agrees to turn over and deliver enough more stock to make the aggregate sum of stock delivered under this contract as follows:

Sapulpa 1,210shares

Choctaw 369 shares

Catossa 369 shares

Wewoka 369 shares

Red Fork 369 shares

Neyaka 368 shares

Concharty 369 shares

Tulsa 319 shares

Car Creek 368 shares

Broken Arrow 369 shares

"The $500.00 above mentioned is to be earnest money to be forfeited in case the balance of payment is not paid. Nelson also agrees to give U. C. Guss his proxy as director in each of the above named companies until such time as it may be convenient for him to resign, and Guss or some one else elected to fill the vacancy.

U. C. Guss, J. T. Nelson.

W. H. Gray,

J. W. McNeal,

F. H. Greer."

The record shows that under this contract Nelson shipped the property described in the contract by express from Ft. Scott, Kan., where the headquarters of the company were, to Guthrie, all the parties being at Guthrie at the time the contract was signed, the residence of Nelson, however, being at either Ft. Smith, Ark., or Ft. Scott, Kan., the right of the plaintiff below to recover being based upon the theory that the defendants below had failed to turn back to Nelson the property delivered to them, and therefore, under the contract, were bound to pay the remainder of the contract price of $4,500.

The defendants' answer to the petition was, first, a general denial; second, that the defendants had elected to turn the property back to the plaintiff prior to the date of the expiration of the option March 4, 1901, and had tendered the same back to the plaintiff; third, that the plaintiff had induced the defendants to enter into the contract through fraudulent misrepresentations; and, fourth, that there was no consideration for the contract. The trial was to the court without a jury. The findings of fact were general, and were in favor of the plaintiff below. The findings contained in the journal entry of judgment are in the following language: "And the court, after hearing all of the evidence and arguments of counsel, and being fully advised in the premises, finds for the plaintiff on all of the issues in this action, and finds that the defendants and each of them are indebted to said plaintiff upon the contract sued upon and set out in this petition in the sum of four thousand five hundred dollars, with interest thereon at the rate of seven per cent. Per annum from the 4th day of March. A. D. 1901. and that the plaintiff is entitled to judgment against the said defendants therefor." Under this finding every question of fact necessary to be found and upon which the judgment is based is in favor of the plaintiff in the action; and, following the rule so frequently laid down and universally adhered to by this court that, where there is evidence upon which a finding of fact may be based, this court will not disturb the finding unless it is manifestly wrong, we might very properly affirm this case without further discussion. However, some of the legal questions arising in the trial of the case below and discussed in the briefs in this case are so interesting, together with the fact that a considerable amount is involved, we think it may be well to notice some of the propositions contended for more in detail.

First we think it proper to call attention to a question of practice that seems to be growing among certain members of the profession in the territory of inserting into a case-made matters of no importance, and which cannot be considered by this court. This practice serves only to make records more voluminous than they should be, and to add to this court's labor. The record in this case is not a large one, but it contains the oral decision of the court below when rendering its decision at the trial. This court, as well as the Supreme Court of Kansas, from which we take our civil procedure act, has repeatedly held that the oral decisions of the trial court have no office in a case-made, should not be included, and cannot be considered by the appellate court, when the finding and judgment of the court below are properly formulated into a record or written order. In this case the findings of fact and conclusions of law of the court below are contained in the journal entry. The oral decision of the judge at the conclusion of the trial cannot be considered by this court in any way. Notwithstanding this, the argument of counsel for plaintiffs in error is based almost entirely upon the oral statements of the trial court, and it is insisted that the court made no findings upon certain propositions, and that, therefore, this court is not obliged to reverse the trial court's findings in order to arrive at a conclusion as to certain of the facts contended for. These contentions of the plaintiffs in error could not possibly anvil anything, because this court is bound to look to the findings of fact as contained in the journal entry. A case-made should properly contain nothing but that which is necessary to enable the appellate court to pass upon the questions involved on appeal. Every question of fact under the general findings in this case is against the plaintiffs in error. Had they desired, special findings might have been made, and in such event the questions contended for and discussed in the briefs might have been properly presented to this court, if the special findings so warranted. The uncontradicted evidence shows that...