Kasishke v. Keppler, 3370.
| Decision Date | 10 February 1947 |
| Docket Number | No. 3370.,3370. |
| Citation | 158 F.2d 809 |
| Parties | KASISHKE et al. v. KEPPLER. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Robert M. Rainey, of Oklahoma City, Okl., and Frank T. McCoy, of Pawhuska, Okl. (Streeter B. Flynn, of Oklahoma City, Okl., and John T. Craig and John R. Pearson, both of Pawhuska, Okl., on the brief), for appellants.
M. A. Breckinridge, of Tulsa, Okl. (Byron V. Boone, of Tulsa, Okl., on the brief), for appellee.
Before PHILLIPS, BRATTON and HUXMAN, Circuit Judges.
L. G. Keppler instituted this action against A. H. Kasishke and his alter ego, the Coralena Oil Company, in the United States District Court for the Northern District of Oklahoma to recover a 1/16th interest in certain oil properties and for an accounting. Kasishke and the Oil Company have appealed from a judgment in favor of Keppler.
The trial court found that in March of 1934 Kasishke entered into an oral contract with Keppler whereby Keppler was to use his skill and talents as a geologist in locating and recommending potential oil and gas properties to Kasishke for his approval; that upon approval thereof, Kasishke was to undertake the acquisition and development of such properties at his own expense and that such expense should be repaid to him out of the development. For his services Keppler was to receive $300 a month and a 1/16th interest in the properties acquired after Kasishke had been reimbursed. The trial court also found that Keppler was an experienced, qualified geologist and at the time of the contract was capable of earning much more than the stipulated salary; that after the execution of the contract, Keppler devoted himself entirely to his duties under the contract; that in 1935, under the terms of the contract, Keppler recommended the Foster block of leases, and that this recommendation was approved by Kasishke and that such leases were developed by Kasishke, and that the parties agreed that the Foster block was to be treated as one transaction. The court further found that two other leases, the Holland lease and the Sellens lease, were recommended by Keppler and were accepted by Kasishke and developed, and that they were to be treated as one transaction, separate and distinct from the Foster block.
The court further found that the first two wells on the Foster block were non-producers, and that while the third well was being drilled, the outlook not looking promising, Kasishke suggested that Keppler prepare a false map in order to aid in the sale of the leases, and that Keppler became offended at such a suggestion and the next day terminated their relationship.
The trial court concluded as a matter of law that the contract created a joint adventure and that a constructive trust arose when Kasishke took the leases in his own name and when he violated his duty as a fiduciary.
These findings are challenged on the ground that they are not supported by the requisite proof, and on the further ground that the court erred as a matter of law in requiring Keppler to establish the contract only by a mere preponderance of proof rather than by clear, definite and convincing evidence, as required by Oklahoma law. Oklahoma does require that such a contract be established by clear, definite, unequivocal and satisfactory evidence.1 The record, however, is clear that the court applied the Oklahoma rule in the trial of this case.2
It is further urged that Keppler's proof falls far short of meeting this test, and that the evidence is insufficient to support the court's findings. There was an irreconcilable conflict in the evidence offered by Kasishke and Keppler on the question of the contract. The court was under the necessity of resolving this conflict. It chose to believe the testimony offered by Keppler, and our inquiry is limited to ascertaining whether the court's finding is supported by clear and convincing proof. In addition to the testimony of Keppler himself, the testimony of the witnesses B. A. Baker, George L. Streeby and Dave Moore all support these findings. No useful purpose would be served by encumbering the record with a detailed recital of this evidence. It is sufficient to say that in our opinion it adequately sustains the findings of the trial court.
It is next urged that in any event the contract does not create a joint adventure under the laws of Oklahoma because there was no joint management or agreement to share losses. This identical contention was...
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Frazell v. United States
...the property of Baker and Kasishke, and the corporations were merely acting as trustees for them. In a companion case, Kasishke v. Keppler, 158 F.2d 809 (10th Cir., 1947), the plaintiff, a geologist, brought suit against the same defendant to recover a 1/16th interest in certain oil propert......
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Haley, Chisholm & Morris, Inc. v. Parrish
...and rev'g in part, 35 B.R. 898 (Bankr.W.D.Okla.1983), later proceeding, 37 B.R. 530 (Bankr.W.D.Okla.1984); see also Kasishke v. Keppler, 158 F.2d 809 (10th Cir.1947). In that example, the injured partner or joint venturer would be given priority in recovering from the debtor's estate partic......
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Dayvault v. Baruch Oil Corp.
...an accounting of the rents and profits from the joint adventure, and the court is not powerless to grant that relief. See Kasishke v. Keppler, 10 Cir., 158 F.2d 809, wherein this court held the statute of frauds inapplicable to a joint adventure for the development of oil properties and gra......
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Cooper v. Stephen Bruce & Assocs.
...28, at 2. The Court considers the entirety of a pleading, rather than focusing myopically on isolated language. See Kasishke v. Keppler, 158 F.2d 809, 811 (10th Cir. 1947). Moreover, Plaintiff's assertion in paragraph 12 of her First Amended Complaint that the letter indicated something to ......
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CHAPTER 7 LIABILITIES OF NONOPERATING OIL AND GAS INTEREST OWNERS
...(1949); Foley v. Phillips, 211 Kan. 735, 508 P.2d 975 (1973); Blackner v. McDermott, 176 F.2d 498 (10th Cir. 1949); Kashishke v. Keppler, 158 F.2d 809 (10th Cir. 1947); Frankfort Oil Co. v. Snakard, 279 F.2d 436, 443 (10th Cir. 1960), cert. denied, 364 U.S. 920 (1961); Grabendike v. Adix, 3......
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CHAPTER 1 LIABILITIES OF NONOPERATING INTEREST OWNERS
...(1949); Foley v. Phillips, 211 Kan. 735, 508 P.2d 975 (1973); Blackner v. McDermott, 176 F.2d 498 (10th Cir. 1949); Kashishke v. Keppler, 158 F.2d 809 (10th Cir. 1947); Frankfort Oil Co. v. Snakard, 279 F.2d 436, 443 (10th Cir. 1960), cert. denied, 364 U.S. 920 (1961); Grabendike v. Adix, 3......