Hughes v. Baker
| Decision Date | 18 September 1934 |
| Docket Number | Case Number: 22172 |
| Citation | 35 P.2d 926,1934 OK 446,169 Okla. 320 |
| Parties | HUGHES v. BAKER et al. |
| Court | Oklahoma Supreme Court |
¶0 1. Appeal and Error--Action--Review of Action Partaking Both of Legal and Equitable Nature--Action on Account or Note and for Foreclosure of Mechanic's Lien Where Issue Joined as to Amount Due.
An action on account or note and for the foreclosure of a mechanic's or material-man's lien, if an issue is joined as to the amount due, partakes both of a legal and equitable nature. That part of the suit for the recovery of a money judgment is legal in its nature, and if there is any competent substantial evidence reasonably tending to support the judgment, this court will not reverse the same. That part of the suit for the establishment and foreclosure of the lien is equitable in its nature and governed by the rules of equity practice. This court in such a case may weigh the evidence and affirm or reverse the case according to the way the weight of the evidence may indicate.
2. Husband and Wife--Agency of Husband for Wife not Presumed--Burden of Proof.
The agency of the husband for the wife will not be presumed from the fact of the marital relation alone, and the burden of proving such agency is on the one alleging it.
3. Partnership -- Joint Adventures -- Evidence Held not to Establish Existence of Partnership or Joint Adventure in Which Grantor of Land for Country Club Project Was Member.
For facts under which it is held there is no partnership or joint adventure, see body of the opinion.
4. Same--Lack of Legal Elements of Partnership or Joint Adventure and Absence of Equitable Estoppel.
If the agreement between the persons interested in and related to an enterprise, as such agreement is made and carried out by the persons, and their acts and conduct in relation thereto, are such as to disclose the lack of some one or more of the legal elements necessary to constitute a partnership or joint adventure, then such persons cannot be held or construed to be partners or joint adventurers, provided: There is ho holding out as partners or other ground of equitable estoppel. If the persons concerned in an enterprise did not intend to become partners in the adventure, and there is no community of interest in the object and purpose of the undertaking and no joint interest in and seizure of the profits of the enterprise, then, unless there is equitable estoppel, there is no partnership.
Appeal from District Court, Pawnee County; Charles C. Smith. Judge.
Actions by John Baker and by the Rounds & Porter Lumber Company against Hattie M. Hughes and others, wherein some of defendants, including named defendant, filed cross-petitions, which actions were consolidated. From an adverse judgment, named defendant appeals. Reversed and remanded, with directions.
Joe T. Dewberry, for plaintiff in error.
McCollum & McCollum, for defendants in error Rounds & Porter Lumber Company, H. D. Morgan, and R. E. List.
L. N. Kimrey, for defendant in error John Baker.
Q. L. Dickerson, for defendant in error Edgar Barber.
¶1 There are 187 pages of pleadings and exhibits attached thereto in the case-made in this case. In brief they are in substance as follows: John Baker filed his petition in cause 7649 on account and for the foreclosure of a laborer's lien of himself and liens of others assigned to to him, which liens are claimed against the land involved herein. He alleges that Hattie M. Hughes, T. C. Hughes, Edgar Barber, H. D. Morgan, and R. E. List were partners; that the purpose of the partnership was to construct and develop a country club; that the contract for the labor was made with Edgar Barber, as one of the partners, to prosecute the partnership enterprise.
¶2 R. E. List, Rounds & Porter Lumber Company, H. D. Morgan, T. C. Hughes, and Hattie M. Hughes deny specifically the partnership and generally plaintiff's allegations, all by verified answers.
¶3 Hattie M. Hughes also files her crosspetition in which she alleges: That she is the owner of the 80 acres of land involved; that at all of the times complained of, H. D. Morgan, R. E. List, and A. F. Mowry were partners as the Castlewood Construction Company; that the Castlewood Country Club is a corporation; that said partnership entered into a joint adventure of promoting a country club and making improvements therefor; that the costs of these improvements were to be paid from the proceeds of the sale of memberships to the club.
¶4 That said partnership verbally agreed to buy said land for the sum of $ 4,000; that cross-petitioner made and placed a deed thereto in escrow to be delivered on payment of said sum of money within six months; that extensions of this time were made, the last of which expired July 15, 1929; that said firm failed to pay said sum within said time, and that cross-petitioner withdrew said deed.
¶5 That said firm, on October 25, 1928, made a written contract with J. E. Barber, referred to as Edgar Barber, for the making and completion of all the construction work and improvements for a country club; that subcontracts were made for portions of this work.
¶6 That the improvements were completed and transferred to and accepted by the Castlewood Country Club in consideration of capital stock in the said corporation, which was issued and delivered to J. E. Barber, H. D. Morgan, and R. E. List, and accepted by them.
¶7 That prior to the time of the completion of the improvements, plaintiff accepted payment from the said Barber as said Barber could collect club membership notes held by him; that said notes have not been paid and that the contract price is not due.
¶8 Unverified replies were filed to this answer and cross-petition.
¶9 Edgar Barber filed his verified answer to the cross-petition and admits the corporate existence of the Castlewood Country Club; denies the copartnership and the allegations generally; admits the employment of the laborers, and adopts a large part of the cross-petition of Hattie M. Hughes as a part of his answer. He also pleads the agreement to accept the proceeds of club membership notes for labor and that the notes have not linen paid and that the price is therefore not due.
¶10 Rounds & Porter Lumber Company filed its petition in cause 7666 on account and for the foreclosure of a lien for material furnished for said enterprise. That for money consideration in excess of the market value thereof, Hattie M. Hughes was to deed the land and that the partners, alleged in cause 7649 to exist, were to furnish the buildings and necessary improvements; that interests in the country club were to be sold for $ 200 per share, from the proceeds of the sale of which the land and improvements were to be paid for, and that the excess of such proceeds over the costs was to be profits to the three partners and the excess of the market value of the land the profits to accrue to Hattie M. Hughes. That when the project was completed it was to be turned over to the Castlewood Country Club. It further alleges similar to the allegations in the petition in cause 7649.
¶11 H. D. Morgan filed his answer admitting a large part of the allegations in the petition, and sets up his lien and asks for judgment on account and the foreclosure of his lien.
¶12 The Hughes filed their verified general denial and specific denial of the partnership. Hattie M. Hughes filed her crosspetition, alleging substantially the same as in her cross-petition in cause 7649.
¶13 Unverified replies were filed to this crosspetition.
¶14 These two actions were consolidated and a trial resulted in a finding that Hattie M. Hughes was a member of the joint adventure, and judgment rendered on account against her and the three others held to compose the members of the joint adventure, and a decree was made establishing the liens, the foreclosure thereof, and for the sale of the property to satisfy the judgments.
¶15 Hattie M. Hughes brings the case to this court and makes 16 assignments of error. There are a number of errors of law assigned, some of them technical, but we prefer to dispose of the case on its merits.
¶16 She contends, among other things, that under the facts alleged she was not a member of the joint adventure, for the reason that under the allegations there was no such community of interest in the business as the law requires to constitute her a member of the partnership or joint adventure, and for the further reason that there is no evidence on which to base a judgment or decree against her, and, also, that, as her allegations of partnership were not denied under oath, such allegations are taken and confessed as true.
¶17 The first paragraph of the brief of the defendants in error states:
¶18 The defendants in error contend that, though the parties were partners as alleged by plaintiff in error, they were partners for the purpose of making the necessary improvements, and that Mrs. Hughes' performance and interest in the partnership was to furnish the land and enjoy the excess of profits above its market value.
¶19 The defendants in error, on page 12 of their brief, assume that "This is a suit at law and a jury case." On page 2 of the reply brief of plaintiff in error, it is stated that "These were equity actions," and that we "shall not burden the court with a reiteration of authority contained in our former brief." We cannot find, however, that we have been favored by either side with authorities on this question. The point becomes important to determine whether or not the court may weigh the evidence and determine the facts in issue.
¶20 Whether a proceeding to foreclose a mechanic's or...
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