Harn v. Patterson
| Citation | 160 P. 924,58 Okla. 694,1916 OK 761 |
| Decision Date | 25 July 1916 |
| Docket Number | Case Number: 6932 |
| Parties | HARN et al. v. PATTERSON. |
| Court | Supreme Court of Oklahoma |
¶0 1. FRAUDS, STATUTE OF--Operation and Effect--Waiver. Under section 847, St. 1890 (section 941, Rev. Laws 1910), a special promise contract to answer for the debt, default, or miscarriage of another is invalid, at the option of the promisor, unless the same be in writing and be subscribed by him or his agent, but such invalidity is waived where oral evidence of such contract is admitted without objection upon the ground of such invalidity and the trial is concluded without the interposition of this statute as a defense.
2. TRIAL--Action for Price--Instructions. Where the court first instructs the jury to the effect that, if plaintiff sold and delivered certain material to defendants and the latter agreed to pay a stipulated price therefor, he is entitled to recover that amount for them, and in a second instruction to the effect that he is entitled to recover the fair value of said material as against such defendants, if any, as may be found to have used the same, and in a third instruction to the effect that no recovery could be had against H. and W., two of the four defendants, unless they agreed personally with plaintiff to pay for said material, these instructions, construed together, are not subject to the objection that they authorize a recovery against H. and W. for said material upon the ground of its use alone, especially in view of a state of evidence clearly showing its use by another defendant and less clearly tending to show its use by all the four defendants.
3. APPEAL AND ERROR--Pleading--Amendment of Pleading--Amendments Regarded as Made. The amendment of a plea which ought to have been allowed, if leave to make it had been asked in the trial court, to conform it to the evidence adduced without objection or by the adverse party will be regarded in this court as having been made.
(a) Where the evidence adduced by a defendant, to refute the theory upon which plaintiff seeks to recover, would sustain a verdict and judgment against him upon a theory which might have been presented by the plaintiff in another count of his petition, the trial court ought to allow an amendment, if asked, alleging such other count.
4. SAME--Review--Harmless Error. Under section 6005, Rev. Laws 1910, no judgment will be set aside or new trial granted by this court on the ground of misdirection of the jury or the improper admission or rejection of evidence, or as to error in any matter of pleading or procedure, unless, in the opinion of this court, after an examination of the entire record, it appears that the error complained of has probably resulted in a miscarriage of justice, or constitutes a substantial violation of a constitutional or statutory right.
(a) After an examination of the entire record in this case it does not appear that any error complained of has probably resulted in a miscarriage of justice, or constitutes a substantial violation of any constitutional or statutory right.
October, 1916, Decided
Error from Superior Court, Oklahoma County; Edward Dewes Oldfield, Judge.
Action by L. E. Patterson against W. F. Harn and others. Judgment for plaintiff, and defendants bring error. Affirmed.
Choate & Choate and Burwell, Crockett & Johnson, for plaintiffs in error.
H. A. Kroeger and Ledbetter, Stuart & Bell, for defendant in error.
¶1 Plaintiffs in error will be designated as defendants, and defendant in error as plaintiff, in accord with their respective titles in the trial court.Plaintiff commenced this action on July 16, 1912, to recover of defendants $ 15,514.85, of which $ 13,717.79 is claimed as principal and $ 1,779.06 is claimed as accrued interest, as the balance due on account of material of the value of $ 19,098.17, sold and delivered to defendants in 1909 for use in the construction of a railway, and for which defendants verbally agreed to pay him said sum, $ 19,098.17, and upon which they paid $ 5,380.38.
¶2 The plaintiff's petition directly alleges and the evidence adduced in his behalf directly shows the facts to be, in substance, as stated in the last preceding paragraph; and it does not appear necessary to a discussion and decision of this case more fully to set out the pleadings and evidence in his behalf.
¶3 The defendants Harn, Hurst, and Winans, averring together, and the defendant Oklahoma City Land & Development Company, averring for itself, all in one answer, deny purchasing, and deny promising to pay for, any of the material alleged in plaintiff's petition to have been sold and delivered to them; and all of these defendants further allege that the Oklahoma Interurban Traction Company and the Hubb Construction Company, and not this plaintiff, owned said material at the time of plaintiff's alleged sale and delivery; but the Oklahoma City Land & Development Company admits in its averments that it received such material from the Oklahoma Interurban Traction Company and the Hubb Construction Company, although it does not admit receipt of the full amount of the same alleged in plaintiff's petition.
¶4 There was a cross-complaint by defendants, demanding damages against plaintiff for an alleged breach of the consolidation agreement hereinafter stated and a reply thereto by the latter; but these pleadings appear to raise no issue that need be stated here, for the reason that the trial court sustained a demurrer to defendants' evidence in support of that petition, to which ruling no exception was taken; and there is no question here arising out of that action of the trial court.
¶5 The evidence adduced in behalf of defendants was to the effect that the Oklahoma City Land & Development Company received from the Oklahoma Interurban Traction Company and the Hubb Construction Company a portion of said material, of the value of $ 5,380.38 prior to October 4, 1909, and on this date paid $ 4,105.70, and on October 19, 1909, $ 1,274.68 to the said Oklahoma Interurban Traction Company in full satisfaction for the same; that on said October 4, 1909, the plaintiff, as owner of a major portion of the stock in the Oklahoma Interurban Traction Company and the Hubb Construction Company, and claiming to represent each of these two companies, entered into an agreement with said Oklahoma City Land & Development Company through the defendants Harn, Hurst, and Winans, and one Hare, who together owned all the stock in this company and acted for it in said agreement; that by the terms of said agreement the Citizens' Traction Company should forthwith be organized by the plaintiff and said Hare, Harn, Hurst, and Winans as stockholders therein, and should take over by transfer all of the property and assets of the Oklahoma Interurban Traction Company and Hubb Construction Company, including all the material mentioned in plaintiff's petition, and all of the railway property and assets of the Oklahoma City Land & Development Company; that the Oklahoma City Land & Development Company should, in the meantime, use said material in the construction of the proposed line of railway and transfer the same to the Citizens' Traction Company as a part of its railway property and assets; that the Oklahoma City Land & Development Company should issue to plaintiff one-third of its capital stock and the Citizens' Traction Company should issue to him one-third of its capital stock, and the latter company should also issue to him its first mortgage bonds in the sum of $ 100,000, in full satisfaction for the said property and assets of the Oklahoma Interurban Traction Company, the Hubb Construction Company, and of the plaintiff himself; that all the material mentioned in the plaintiff's petition, except the amount so paid for on October 4 and 19, 1909, was received and used by the Oklahoma City Land & Development Company after said consolidation agreement had been entered into and under and by virtue of said agreement for the purpose of immediate use in the construction of said line of railway, and thereupon for the purpose of being transferred as aforesaid to the said Citizens' Traction Company; that neither the Oklahoma City Land & Development Company nor the defendants Harn and Winans agreed to pay plaintiff, or any one else, for said material, or any part of the same; that the said Citizens' Traction Company was organized in November, 1909, in accordance with said consolidation agreement, and the plaintiff was elected president of the same and a member and chairman of its board of directors; that plaintiff received one-third of the stock in the Oklahoma City Land & Development Company, although this was delivered to him without authority; that the defendants offered to plaintiff to transfer the railway property of the Oklahoma City Land & Development Company to the Citizens' Traction Company, and at the same time demanded of plaintiff a transfer of the property and assets of the Oklahoma Interurban Traction Company and of the Hubb Construction Company in accord with the terms of said consolidation agreement, but the plaintiff refused to and did not make such transfer; that the consolidation agreement was thus breached by plaintiff, and that thereafter the Oklahoma City Land & Development Company, acting through the actually personal defendants as its officers, transferred its railway property to the Capital Traction Company, a company organized by the defendants, instead of the Citizens' Traction Company.
¶6 The plaintiff, in rebuttal, denied any such consolidation agreement as that to which defendants testified; he denied that there was any agreement under which any of the material mentioned in his petition was delivered to defendants or either of them, except in the sale and purchase alleged and testified to by him; but he admitted conversational negotiations by all of the other parties with himself, directed toward a consolidation agreement which he was inclined to favor,...
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