Mcmillan v. Wright

• Citation: 219 P. 298,93 Okla. 25,1923 OK 791
• Decision Date: 16 October 1923
• Docket Number: Case Number: 14273
• Parties: McMILLAN et al. v. WRIGHT.
• Court: Supreme Court of Oklahoma

1923 OK 791

219 P. 298

93 Okla. 25

McMILLAN et al. v. WRIGHT.

Case Number: 14273

Supreme Court of Oklahoma

Decided: October 16, 1923

Syllabus

¶0 1. Pleading--Estoppel--Waiver of Pleading.

While, as a general rule, estoppel or waiver must be pleaded, failure to do so may be waived by defendant proceeding with the trial of the case without objection as though such estoppel had been pleaded by the plaintiff.

2.Appeal and Error--Questions of Fact--Verdict.

Where there is competent evidence reasonably tending to support the verdict of the jury, and no prejudicial errors of law are shown in the instructions of the court, or its ruling upon law questions presented during the trial, then the verdict and finding of the jury is conclusive upon appeal, and will not be disturbed by the Supreme Court.

Eugene Rice, for plaintiffs in error.

C. L. McArthur and John W. Scott, for defendant in error.

FOSTER, C.

¶1 This action was commenced in the district court of Stephens county, Okla., by B. F. Wright, defendant in error, as plaintiff below, against J. A. McMillan to recover the sum of $ 350, alleged to be due the plaintiff as purchase money for two houses and lots located in the town of Empire in said Stephens county. An amended petition was filed on the 30th day of January, 1922, by the defendant in error, making Jack Spain a party defendant, and suing the plaintiffs in error, J. A. McMillan and Jack Spain, copartners doing business under the name of McMillan & Spain, defendants below, to recover said sum of $ 350. The parties will be hereinafter referred to as they appeared in the court below. In his amended petition the plaintiff sets out two causes of action against the defendants.

¶2 In his first cause of action, plaintiff alleged that on the 22nd day of May, 1920, he sold the defendant a certain lot for a consideration of $ 700, of which amount $ 400 was paid in cash: that the defendants agreed in writing to pay the remainder of the consideration, to wit, $ 300, within a few days thereafter, and that to evidence said promise to pay, a writing was executed by the defendants, but that he was unable to attach a copy of said writing to his petition by reason of the same having been lost. The second cause of action alleged that on the day of May, 1920, plaintiff sold to the defendants a certain house for the sum of $ 125, of which amount $ 75 was paid in cash, and by virtue of an oral promise, the balance of $ 50 was payable in a few days; that none of said sums had been paid and plaintiff demanded judgment on each cause of action in the total sum of $ 350, with interest at the rate of six per cent. per annum from the date of the maturity of the indebtedness. It was further alleged that at the time of incurring the obligations set forth in both causes of action, J. A. McMillan and Jack Spain were copartners, engaged in the brokerage business and buying and selling houses, lots, and leases in Empire City, Stephens county, Okla.

¶3 Defendants' answer was unverified and was a general denial of the allegations of each cause of action, and a specific denial that they were partners at the times mentioned in the petition, or at any other time, and denied that they entered into the contract mentioned in plaintiff's first cause of action. Further answering plaintiff's second cause of action, they alleged that J. A. McMillan acted as agent of a certain Dr. Stone in said transaction and that the entire purchase price had been paid. No reply was filed and on the 13th day of October, 1922, the cause was tried to a jury resulting in a verdict for the plaintiff on each cause of action in the total sum of $ 350. At the close of plaintiff's testimony, the defendants demurred to the evidence, and at the close of all the testimony in the case, requested the court to instruct the jury to return a verdict in favor of the defendants on each cause of action. The demurrer and motion was by the court overruled and exceptions allowed. Motion for a new trial was filed and overruled, and the defendants appeal and assign the following errors:

First. The court erred in overruling the demurrer of the defendants to the evidence of the plaintiff.

Second. The court erred in overruling defendants' motion for an instructed verdict as to plaintiff's first cause of action.

Third. The court erred in overruling the defendants' motion for an instructed verdict as to plaintiff's second cause of action.

Fourth. That the verdict and judgment are contrary to the law and the evidence.

Fifth. The court erred in overruling defendants' motion for a new trial.

¶4 All of the assignments of error go to the sufficiency of the evidence to sustain the verdict of the jury. Defendants contend that the evidence wholly fails to establish the partnership. It is argued that the specific denial by the defendants in their answer of the existence of a copartnership cast the burden of proving the partnership upon the plaintiff, and that in the absence of direct proof in the record of the existence of such...