Hilliard v. Douglas Oil Fields

Citation122 P. 626,20 Wyo. 201
Decision Date01 April 1912
Docket Number679
PartiesHILLIARD v. DOUGLAS OIL FIELDS
CourtUnited States State Supreme Court of Wyoming

ERROR to the District Court, Converse County; HON. RODERICK N MATSON, JUDGE.

The action was brought in the district court by the Douglas Oil Fields against Robert O. Hilliard. From a judgment for plaintiff, the defendant brought error. The material facts are stated in the opinion.

Judgment reversed and affirmed.

Clark &amp Clark, for plaintiff in error.

Each cause of action having been framed upon an itemized account set forth in an exhibit and it having been pleaded that the defendant was indebted in a stated amount for a specified proportion of certain expenditures, without any reference in the petition to any express contract, the admission in evidence of the contract or contracts upon which the claims were based was error. The propriety of the petition must depend entirely upon section 4406, Compiled Statutes, 1910 which declares that in an action, counter-claim or setoff founded on an account or upon an instrument for the unconditional payment of money only, it shall be sufficient to set forth a copy of the account or instrument, with all credits and indorsements thereon, and to state that there is due on such account or instrument from the adverse party a specified sum, which is claimed with interest. If the case of Frontier Supply Co. v. Loveland, 15 Wyo. 313, is in point as has been contended by the plaintiff below it is not an authority favorable to him. The entire object of the code is to do away with technical forms to the end that pleadings may be framed in simple, concise language, and so that a petition may definitely inform the defendant of the ground upon which his liability is sought to be maintained. This was not done by the petition in this case. Items of cash are not the proper subject of book account and the section of the code above cited is not applicable thereto. (McKenny v Goodall, 1 O. C. C. 23; Horning v. Poyer, 18 Id. 732.)

The findings and conclusions do not comply with the request that the conclusions of fact and law be separately stated in writing. This point was made in the motion for new trial, as well as that the conclusions of law and the judgment are not supported by any finding of fact. (Comp. Stat. 1910, sec. 4515.) The failure to make sufficient findings upon request therefor is reversible error. (School Dist. v. Western Tube Co., 13 Wyo. 304; Shattuck v. Costello, (Ariz.) 68 P. 529; Kehr v. Hall, (Ind.) 20 N.E. 279; Ex parte Walls, 73 Ind. 95; Mitchell v. Brawley, 140 Ind. 216; Hamill v. Talbott, 72 Mo.App. 22; Ins. Co. v. Tribble, 86 Mo.App. 546; Evans v. Kister, 92 F. 828; Land Co. v. Lombard, 132 F. 721; Mitchell v. Jensen, 29 Utah 346, 81 P. 165; Wood v. Broderson, 12 Ida. 190, 85 P. 490; Daggs v. Hoskins, 5 Ariz. 236, 52 P. 357; Carpenter v. Yeadon Borough, 208 Pa. 396, 57 A. 837; McHale v. Wellman, 101 Tenn. 150, 46 S.W. 448; Farmer v. Power Co., 117 Wis. 76, 93 N.W. 830.) The insufficiency of the findings under the request made is plain. Some of the items claimed in the first cause of action were disallowed, but the finding fails to show the items which were thus disallowed and the items for which judgment was rendered. The second cause of action was founded upon a contract executed by one assuming to act as agent for the defendant, and the principal issue at the trial had reference to the authority of such agent. The court failed to find that the contract had ever been made, or to make any finding respecting the agency. There is nothing in the findings beyond that which would be found in a mere judgment for the amount.

Upon no possible construction of the contract of August 16, 1904, could the court properly have found that the defendant was liable for any of the items set forth in the first cause of action. The contract may be ambiguous in other respects, although it appears to have been drawn with the utmost care, but under one of the sections it is clear Hilliard did not assume any liability with respect to indebtedness incurred after August 16, 1904, and no such liability has arisen under any other section.

The items set out in the account annexed to the petition upon which the second cause of action is based are expenses in connection with a certain litigation; the cause of action is based upon a contract signed by one assuming to act as agent for Hilliard. It was sought to sustain this agreement on the ground that the purported agent had express, implied or apparent authority, or that Hilliard had ratified his act in executing the contract. The evidence is insufficient to show any express authority. The person who executed the contract had been appointed arbitrator by Hilliard, but that did not give him the authority to execute a contract. (3 Cyc., 625.) A power of attorney was relied upon, but that instrument was not executed until a month later than the contract in suit, and is specific in terms as to the authority granted, excluding the execution of the lease to Hilliard, or the agreement here involved. None of the letters of Hilliard which had been destroyed, and from which it was sought to show express authority to the agent, were admissible in evidence. (2 Ency. Ev. 234.) But if parol evidence had been admissible, there is nothing in the record to indicate that any of them authorized this agreement. It is submitted that the entire evidence is insufficient to show any express or implied authority for the execution of the lease. (Clark & Skyles on Agency, page 498; Bank v. Steamship Co., 95 Cal. 1, 29 Am. St. 85; Gregory v. Loose, 19 Wash. 599, 54 P. 33; Durkee v. Carr, 38 Or. 189, 63 P. 117; Harnett v. Garvey, 36 N. Y. Super. 326; Markham v. Ins. Co., 69 Ia. 515, 29 N.W. 435; 31 Cyc., 1399.) Express authority is what its name implies; implied authority is derived from express authority, being such additional authority as is necessary, usual, reasonable and proper to carry out the express authority; apparent authority is created by estoppel. (Clark & Skyles on Agency, page 464; Gregory v. Loose, supra.) The fact that Hilliard took possession of the lands included in the agreement does not establish a ratification, for he was entitled to his share of the lands under the contract of August 16, 1904, and had he known that in the sub-lease a condition required him to pay a part of the litigation expenses and he had then taken possession, that would not have been a ratification. It appears, however, that he did not know of the existence of the agreement, and he could not, therefore, ratify it.

The statutory action on an account is nothing more nor less than the common law action of assumpsit, and the same rules apply. (Cincinnati v. Cameron, 33 O. St. 336; Frontier Supply Co. v. Loveland, 15 Wyo. 313.) To recover for money paid, it is necessary that the money shall have been actually paid; the mere incurring of an indebtedness is not sufficient. (27 Cyc., 836, 837.) The declaration of an agent respecting his authority cannot bind the principal, and it is error to admit evidence of such declaration standing alone. Evidence of that character was erroneously admitted, and it is submitted that upon the record in this case the court cannot properly apply the rule that in a trial by the court the erroneous admission of evidence would not be deemed prejudicial error, because of the presumption that the judge rejected such evidence in reaching his conclusion.

William B. Ross, for defendant in error.

An action upon an account under the statute is different from a common law action on account. Subjects may be embraced in such an action which have their origin in contracts express as well as implied. If the defendant is liable under the rules of law for services rendered, for expenditures made, or for goods delivered, or for anything else, he may be sued in an action on an account, or in any other form. The two causes of action were properly pleaded, although the claim may have been for particular items arising out of express contracts. The contention that Hilliard is under no obligation to the plaintiff is not reasonable, if it is a fact that he entered into the contract of August 16, 1904, whereby he received from the plaintiff a certain proportion of this property and agreed to pay the same proportion of the expenses and obligations relating to the same. The object of the action on an account is to recover sums due when the transaction covers several items. (1 Cyc., 471-474; 1 Ency. Pl. & Pr. 90; Miller v. Armstrong, (Ia.) 98 N.W. 561; Clark v Clark, 46 Conn. 586; Lovell v. Earle, 127 Mass. 546; Horning v. Poyer, 18 O. C. C. 732; Schmidt v. Wambacker, 62 Ga. 321.) It is well established that though there may have been a contract, if the contract is terminated so that nothing remains to be done under it, and there is a certain definite sum due from one to the other, under the terms of the contract, or if such sum can be determined by computation, the suit may be upon the account and need not be upon the special contract; and this is especially true where there are other items proper subjects of account between the parties, so that it is no defense to such an action that some of the items arose under special contract. (1 Cyc., 474; 1 Ency. Pl. & Pr. 90; Cincinnati v. Cameron, 33 O. St. 336; Bank v. Patterson, 7 Cranch, 299; Ingle v. Jones, 69 U.S. 1; Schmidt v. Wambacker, 62 Ga. 321; Club v. Holmes, 42 A. 392; Felton v. Dickinson, 10 Mass. 287; R. Co. v. Gibbons, (Ga.) 32 S.E. 151; Coney v. Horne, (Ga.) 20 S.E. 213; Tumlin v. Bass F. Co., (Ga.) 20 S.E. 44; Frontier Supply Co. v. Loveland, 15 Wyo. 313; Wilkins v. Stevens, 8 Vt. 214; Newton v. Higgins, 2 Vt. 366; Connor v. Hutchinson, 17 Cal. 279.) It is too late to object to the form of the pleadings, since the answer is a general...

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