Jewell v. Huddleston

• Decision Date: 23 May 1961
• Docket Number: No. 38661,38661
• Citation: 362 P.2d 103
• Court: Oklahoma Supreme Court
• Parties: Freda JEWELL and Rose M. Rains, Plaintiffs in Error, v. Charles H. HUDDLESTON and The Oklahoma State Bank, Ada, Oklahoma, a corporation, Defendants in Error.

Page 103

362 P.2d 103

1961 OK 119

Freda JEWELL and Rose M. Rains, Plaintiffs in Error, v. Charles H. HUDDLESTON and The Oklahoma State Bank, Ada Oklahoma, a corporation, Defendants in Error.

No. 38661.

Supreme Court of Oklahoma.

May 23, 1961.

Syllabus by the Court

1. Where evidence in case of equitable cognizance is conflicting, trial court's finding thereon will not be disturbed on appeal unless clearly against the weight thereof.

2. The consolidation of actions for trial is not, in the absence of statute, a matter of right but rests in the trial court's sound legal discretion.

3. The denial of a jury trial in an accounting case is not error.

Appeal from the District Court of Pontotoc County; John Boyce McKeel, Judge.

Action for approval of an accounting. Judgment for plaintiff, and defendants appeal. Affirmed.

Clem H. Stephenson, Seminole, Carloss Wadlington, Ada, for plaintiffs, in error.

Kerr, Lambert, Conn & Roberts, by Wayne H. Lewis, Ada, for defendants in error.

PER CURIAM.

This action was commenced December 14, 1956, by the defendant in error, Charles H. Huddleston, hereinafter referred to as plaintiff, against plaintiffs in error, Freda Jewell and Rose M. Rains (daughter and mother), hereinafter referred to as defendants. The petition alleged that on June 22, 1953, the defendant, Freda Jewell, had certain monies in the Oklahoma State Bank at Ada, Oklahoma, which she desired to invest for the benefit of defendants; that on said date defendants executed a power of attorney appointing plaintiff attorney in fact for them empowering him in extremely broad terms to handle their funds and business affairs.

The petition further alleged that in October, 1954 there was a further oral agreement between defendants and plaintiff in connection with investing in oil and gas leases, royalties and mineral interests; that plaintiff did exercise the powers vested in him under both the power of attorney and the oral agreement making investments as authorized; that defendants have threatened numerous court actions and are making certain objections to plaintiff's manner of handling their affairs.

Plaintiff attached to his petition a full account of transactions made by him and prayed that same be approved by the court and that he be discharged from further liability.

Subsequently, the Oklahoma State Bank of Ada, Oklahoma, was made an additional party defendant at request of defendants.

The defendants filed their verified answer pleading a general denial, specific denial of the execution of the power of attorney pleaded by plaintiff, denial of the oral contract alleged by plaintiff, and lack of jurisdiction of the court to approve accounts of plaintiff.

Defendants also filed a cross-petition against plaintiff and Oklahoma State Bank in which they sought in their first cause of action a judgment for $5,000 and interest on money represented by a note of plaintiff in their favor. On second cause of action they prayed judgment for $7,911.44 and interest for money the plaintiff put into certain oil leases which proved worthless. In the third cause of action they asked judgment for $8,644.17 and interest, being the interest upon sums used by the plaintiff for his own benefit.

The plaintiff's reply was a general denial and a specific denial of any agency of plaintiff for the Oklahoma State Bank of Ada.

The Oklahoma State Bank filed an answer denying generally the allegations of the cross-petition and specifically denying plaintiff was its agent in the pleaded transaction.

Upon request the court made findings of fact and conclusions of law, and these, insofar as pertinent to the issues raised, are in substance: that the power of attorney was signed by defendants; that under such power of attorney plaintiff had power to make investments, including purchase of stocks, lands, oil and gas leases, mineral rights and properties of any character; that the account attached to plaintiff's petition covered all transactions; that plaintiff rendered full and complete account showing receipt of $51,312.66 and returned $54,193.05; that plaintiff paid $5,438.77 for automobile and home improvements for defendants; that plaintiff's investments were authorized by power of attorney and oral agreement; that plaintiff borrowed from defendants' account $5,000, which has been fully repaid with 4% interest; that $600 was total compensation received by plaintiff for his services; that defendants have wholly failed to establish allegations of cross-petition.

Conclusions of law by the court were: that power of attorney is valid; that plaintiff has rendered a full accounting and is entitled to be discharged from further liability; that plaintiff did not act as agent for Oklahoma State Bank and such bank has no liability; that defendants have failed to establish the allegations of their cross-petition and that no attorneys fee is due on note of plaintiff.

Defendants have appealed from the judgment rendered on the findings and conclusions.

The first proposition urged by appellants concurns the validity of signatures of defendants on five different instruments as follows: 1. Power of attorney; 2. Oil and gas lease; 3. Assignment of oil and gas lease; 4. Ratification of oil and gas lease; 5. Another ratification.

The defendants denied signing any of these instruments, which the plaintiff testified they signed. A purported handwriting expert for the defendants testified that these signatures were not those of defendants, while three bank officials, accustomed to examining and passing upon signatures were of the opinion that the signatures were those of defendants, and the trial court so found.

This court has long been committed to the rule that:

'Where evidence in case of equitable cognizance is conflicting, trial court's finding thereon will not be disturbed on appeal unless clearly against the weight thereof.' Mayer v. Pettigrew, Okl., 272 P.2d 411.

See also Rockett v. Ford, Okl., 326 P.2d 787; Wilson v. Lee Evans Drilling Co., Okl., 322 P.2d 630; Lumm v. Colliard, Okl., 317 P.2d 273; and Cox v. Kelley, Okl., 295 P.2d 1061.

There was ample evidence to sustain the trial court's finding that the documents questioned were actually signed by defendants.

There was also ample evidence to sustain the court's finding that Huddleston was not acting as agent of...