Kerr v. Thelen

• Decision Date: 18 March 1940
• Docket Number: 7998.
• Citation: 100 P.2d 928,110 Mont. 316
• Parties: KERR et al. v. THELEN et al.
• Court: Montana Supreme Court

100 P.2d 928

110 Mont. 316

KERR et al. v. THELEN et al.

No. 7998.

Supreme Court of Montana

March 18, 1940

Appeal from Ninth District Court, Toole County; W. L. Ford, Judge.

Action by Ewing T. Kerr, as receiver of the Ferdig Oil Company, and others, against John N. Thelen and another, to recover interests in oil and gas leaseholds. Judgment for defendants and plaintiff appeals.

Affirmed.

Theo Hollister and Lathers & Hoag, all of Duluth, and L. P Donovan, of Shelby, for appellants.

G. E Hurd, of Great Falls, for respondents.

ANGSTMAN Justice.

This action arises out of the same facts as those involved in the companion case No. 7997, Wilson v. Thelen, Mont., 100 P.2d 923, this day decided. The additional fact here appearing is that plaintiff was appointed receiver for S. C Ferdig, I. E. Ferdig, the Sylvester Oil Company, Treasure State Oil Syndicate, Sylvester Ferdig, Trustee of the Sylvester Oil Company, Sylvester Ferdig, Trustee of the Treasure State Oil Syndicate, Ferdig Oil Company, and Yellowstone Petroleum Company, by the United States District Court in and for the District of Wyoming, on June 3, 1933, in the Wyoming suit referred to in the facts set out in the opinion in case No. 7997. He was later appointed ancillary receiver for the United States District Court for the District of Montana. He brought this action to recover the possession of the property involved in case No. 7997, aside from the one third interest alleged in that action to belong to Mr. Wilson. The trial court found in favor of the defendants, and plaintiff appealed.

The same questions arise in this case as in case No. 7997, with one exception. In this action plaintiff produced some evidence in addition to that presented in case No. 7997. This additional evidence tended to show that Mr. Thelen promised the officers of the Ferdig Oil Company in effect that he would put up the money necessary to prevent the sale of the property, and that he led the officers of the corporation to believe that he was buying in the property for the protection of the corporation. The most that can be said of this additional evidence is that it presented a question of fact for the court to determine. It was sharply contradicted. The court found for the defendants on the issue, and since there is substantial evidence supporting the court's conclusion, we are not at liberty to interfere.

All other questions in this case are the same as...