Mulhall v. Mulhall

• Decision Date: 27 July 1895
• Citation: 1895 OK 43,3 Okla. 304,41 P. 109
• Parties: ZACHARIAH MULHALL v. JOSEPH L. MULHALL.
• Court: Oklahoma Supreme Court

1895 OK 43

41 P. 109

3 Okla. 304

ZACHARIAH MULHALL v. JOSEPH L. MULHALL.

Supreme Court of Oklahoma

Decided: July 27, 1895

Error from the District Court of Logan County.

Syllabus

¶0 1. PLEADINGS -- Amendments -- Variance. Where the plaintiff sued the defendant for money loaned, and the defendant answered by a general denial, and also by special plea that the money had been invested in cattle in which plaintiff and defendant were partners, and in which they had both invested certain amounts of money, and that the cattle still remained undisposed of, and where the plaintiff replied by general denial, and a trial was had by the court, and neither the evidence nor the rulings upon any of the questions occurring on the trial are saved but the record is brought to this court on a transcript of the pleadings and the special findings and conclusions of the court, showing that the court found that the $ 1,500 was invested in a partnership interest in the cattle, but afterwards the defendant agreed to take the plaintiff's interest in the cattle and to pay him back the said sum of $ 1 500, and the court rendered judgment for the amount sued for in favor of plaintiff, held, that the case is one in which the pleadings could have been amended to correspond to the proof, and that, no objection appearing to have been made until after judgment, this court will consider the case as if proper amendments had been made, and there was not a fatal variance.

2. TRIAL--Presumption of Regularity. Where the evidence and the record of the proceedings occurring on the trial of the cause are not brought to this court, but only the pleadings, finding and conclusions of the court and the motions made after judgment, the presumption is that all of the proceedings of the court are regular, and that the pleadings were treated by the parties as amended where the case is one where an amendment may be allowed.

3. CONTRACT -- Sufficiency of Consideration. A partnership interest in certain cattle in which a party had invested $ 1,500, and in which it appeared at the time of the contract that the business would be unprofitable and losses might occur, and where there is no claim of fraud or deceit, is sufficient consideration for a promise to pay $ 1,500 for such partnership interest in the cattle.

Huston & Huston, for plaintiff in error.

Keaton & Cotteral, for defendant in error.

BIERER, J.:

¶1 This action was brought in the court below by Joseph L. Mulhall against Zachariah Mulhall under the 1893 Code of Civil Procedure, which is the Kansas code, adopted into this territory, to recover from the defendant the sum of $ 1,500, with interest, in which amount the plaintiff alleged the defendant was indebted to him for money loaned by plaintiff to the defendant on the 16th day of February, 1893, and which the plaintiff alleged was due and unpaid. The defendant filed his answer in two paragraphs: (1) a general denial, and (2) a special defense in which the defendant alleged that on the 16th day of February, 1893, plaintiff and defendant entered into a contract of partnership whereby it was agreed that they would enter into the cattle business and would purchase a large number of cattle to feed; that they arranged with one Samuel Lazarus to procure three hundred and sixty-five head of cattle; that plaintiff placed in said business $ 1,500 (the $ 1,500 for which he sued the defendant) and that the defendant placed in said business $ 500, and Samuel Lazarus $ 11,575; that said cattle were to be sold and Lazarus to receive his said investment with interest thereon, after which plaintiff and defendant were to receive their respective investments, and if anything then remained it was to be divided as profits; that the cattle were to remain the cattle of the said Lazarus until his money was received therefrom as agreed; that the said Lazarus has sold and disposed of a portion of said cattle, but not sufficient to pay his interest therein, and that said partnership business still remains undisposed of, and that plaintiff and defendant have had no settlement, and cannot make any settlement until the cattle are disposed of. To this answer plaintiff filed a general denial. A trial was had by the court, a jury being waived. Upon the trial the court made the following findings of fact and conclusions of law, and rendered judgment thereon as follows, to-wit: "The court having heard the evidence and being fully and sufficiently advised in the premises, finds the following facts: (1) That on or about the 16th day of February, 1893, the plaintiff and defendant entered into an agreement for the purpose of buying and feeding a bunch of cattle to be purchased of one Tonk Smith, and such cattle were so purchased, under an implied agreement of partnership. (2) That in pursuance of said agreement plaintiff put in the sum of fifteen hundred dollars and the defendant the sum of five hundred dollars and paid the same to the said Tonk Smith as the first payment on said cattle. (3) That afterwards, in order to obtain the balance of the purchase price of said cattle the defendant had a bill of sale for said cattle executed and delivered by the said Tonk Smith to one Samuel Lazarus, said plaintiff not objecting. (4) That afterwards it appeared that the said cattle deal entered into by said parties would not be profitable and might result in loss. (5) That after it appeared that said cattle deal might not prove profitable the said defendant, Zack Mulhall, voluntarily released the said plaintiff, Joseph Mulhall, from said agreement and assumed the risk of loss and accepted of whatever of profit there might result from the enterprise and agreed to pay the plaintiff the sum of $ 1,500.

¶2 And thereupon, the court finds the following conclusions of law:

"1. That the plaintiff was released from liability as a partner.

"2. That the defendant is liable to the plaintiff for the said sum of fifteen hundred dollars ($ 1500.00) put into said partnership by the said plaintiff.

"It is, therefore, considered, ordered and adjudged by the court, that the plaintiff recover judgment against defendant in the sum of fifteen hundred hundred dollars ($ 1500.00) with interest thereon, at the rate of seven per cent. per annum and the costs of suit, to which judgment and conclusions of law the defendant excepts."

¶3 After the judgment was rendered, the defendant moved for judgment in his favor on the findings of the court, and also for a new trial, both of which motions were overruled and an exception allowed. From this judgment the defendant appeals and relies upon two propositions for a reversal of the judgment: First, that there was a fatal variance between the cause of action stated in plaintiffs petition and the cause of action upon which he recovered. Second, that there was no consideration to support the defendant's agreement to repay the plaintiff his $ 1500.00 for which plaintiff recovered.

¶4 The first is the principal question involved in the case, and one that has caused us to spend considerable time and much effort in an investigation of the decisions upon this question, and in which we have been aided but little by the briefs of counsel, for counsel for plaintiff in error only cites decisions from other states where the codes are not shown to be the same as ours, nor the construction similar to that of the state from whence we have borrowed our statute, nor does he cite cases which were tried the same as the one at bar must be presumed, from the record before us, to have been, and this, in matters of practice, is vital in the consideration of a case as a precedent, for how can a decision on a question of practice be in point unless the questions arose in a similar manner in the cited and in the disputed case, when the manner of the trial, or the mode of appeal, may waive or fail to present the very question at issue? The brief of defendant in error contains only the earlier, and none of the later, decisions on the point in controversy. The question must be determined, not from the provisions of the codes generally, with the decisions of other states thereon, but from the provisions of our code with the decisions of the Kansas supreme court thereon, for our legislature has adopted the Kansas Code of Procedure, and the Kansas decisions must control upon the question. The sections of the code bearing upon the question are as follows:

"(4011) SEC. 133. No variance between the allegations, in a pleading, and the proof, is to be deemed material, unless it have actually mislead the adverse party, to his prejudice, in maintaining his action or defense upon the merits. Whenever it is alleged that a party has been so mislead, that fact must be proved to the satisfaction of the court, and it must also be shown in what respect he has been mislead, and thereupon the court may order the pleading to be amended, upon such terms as may be just.

"(4012) SEC. 134. When the variance is not material, as provided in the last section, the court may direct the fact to be found, according to the evidence, and may order an immediate amendment without cost.

"(4013) SEC. 135. When, however, the allegation of the claim or defense, to which the proof is directed, is unproved, not in some particular or particulars only, but in its general scope and meaning, it is not to be deemed a case of variance within the last two sections, but a failure of proof.

"(4017) SEC. 139. The court may, before or after judgment, in furtherance of justice, and on such terms as may be proper, amend any pleading, process or proceeding by adding or striking out the name of any party, or correcting a mistake in the name of a party, or a mistake in any other respect, or by inserting other allegations material to the case, or conform the pleading or proceeding to the facts proved, when such amendment does not change substantially the claim or defense; and when any proceeding fails to conform, in any respect, to the provisions of this code, the

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