Nix v. Brogan
| Decision Date | 13 October 1925 |
| Docket Number | Case Number: 15055 |
| Parties | NIX, Trustee, v. BROGAN et al. |
| Court | Oklahoma Supreme Court |
¶0 1. Appeal and Error--Review--Questions of Fact in Equity Case.
Where a question of fact arising in the trial of an equity case has been decided in the trial court upon the conflicting evidence, on appeal the evidence will be viewed and considered by the appellate court; but the finding of the trial court will not be disturbed because of alleged insufficiency of the evidence unless it is made to appear that the finding is against the clear weight of the evidence.
2. Contracts--Validity--Enforcement.
The general rule is that the courts will enforce contracts as made by the parties, where the conditions called in question are not in violation of law or some fixed rule of public policy.
3. Same--Party Presumed to Know Conditions of Instruments Under Which He Claims.
The general rule is that the law will impute notice and knowledge to a party of the conditions of instruments under which he holds or claims title.
4. Oil and Gas--Leases--Liability for Lien for Labor and Material--Liability and Rights of Assignor of Lease Reserving an Interest.
Where an owner of an interest in oil and gas rights conveyed by a lease assigns and transfers his interest to another for the purpose of operating the lease, for a part of the production, his rights retained may be subjected to statutory liens of materialmen and oil well drilling contractors the same as the rights acquired by the transferee; and where such transferee breaches his contract to keep the property free of such liens, and the interests of his assignor are wiped out by reason of the breach, it is not error to render judgment against the transferee for the amount the assignor's interests sold for at the lien foreclosure.
5. Judgment Sustained.
The record held to support the judgment.
Commissioners' Opinion, Division No. 4.
Error from District Court, Caddo County; Will Linn, Judge.
Action by Geo. W. Nix, trustee, against J. E. Brogan et al. From the judgment, Geo. W. Nix, trustee, appeals. Affirmed.
Bellatti & Brown, for plaintiff in error.
Bond, Melton & Melton and W. H. Starkweather, for defendant in error Brogan.
¶1 The plaintiff, Geo. W. Nix, trustee, commenced his action in the district court of Caddo county on the 28th day of April, 1921, for and on behalf of "various individuals" undisclosed by the petition, and against the principal defendant, J. E. Brogan, for the purpose of canceling a lien claim filed by such defendant upon land described as the northwest quarter of southeast quarter of section 11, township 5 north, range 9, west I. M., in Caddo county; and upon all the oil equipment located thereon including a producing oil well; and to quiet title as against the defendant J. E. Brogan. Other parties are made defendants because of ownership of royalty interests in the oil produced from the well. The attack made upon defendant's lien claim is that it is for an exorbitant amount of $ 36,124.92, when in truth, as is alleged, the plaintiff owes only the sum of $ 5,225 which plaintiff tenders and offers to pay. The plaintiff prayed that defendant J. E. Brogan be required to accept the amount tendered in full settlement of his lien claim, and for cancellation of his lien, and that the title be quieted as against defendant J. E. Brogan, and for the appointment of a receiver pending the litigation. A receiver was appointed and the property involved was taken charge of and operated by him.
¶2 The defendant J. E. Brogan filed answer and cross-petition. By his cross-petition he sought to foreclose his materialman's and mechanic's lien, claiming that the sum of $ 36,124.92 was due from the plaintiff, and claiming a lien for said sum upon the property involved. Several parties were named in the cross-petition as claiming interests in the property, but such claims are alleged to be junior and inferior to the cross-petitioner's rights in the property. Copy of the lien claim is attached and made a part of the cross-petition. Plaintiff answered the cross-petition of Brogan by general denial. The Tobacco Users Oil Company, a corporation, one of the defendants, filed answer and cross-petition against plaintiff and others of the defendants, seeking to have its rights in the property determined and adjudged to be superior to the rights of the plaintiff and defendants, other than the fee owners who were also made parties defendant. The pleadings of the various parties are voluminous, but other than above stated seem to be unimportant in a determination of this appeal.
¶3 The issues were made up and the case called for trial on the 29th of November, 1922, and the cause tried to the court without a jury. The trial resulted in a finding and judgment in favor of the defendant and cross-petitioner J. E. Brogan against the plaintiff Geo. W. Nix, trustee, in the sum of $ 27,274.92; and the said sum, together with an attorney's fee in the sum of $ 2,500 and other costs, were decreed to be a lien on the entire leasehold estate and the oil equipment upon the lease. The trial court, by the judgment, fixed the rights of all the parties, and directed a foreclosure of the lien created in favor of defendant J. E. Brogan; and directed a sale of the property according to the priorities found in favor of the other parties. The court likewise found that the plaintiff had not complied with his contract with the Tobacco Users Oil Company, a corporation, and canceled and set aside the contract under which the plaintiff claimed as against said corporation. The plaintiff Geo. W. Nix, trustee, prosecutes appeal against J. E. Brogan and all the parties as defendants in error. The plaintiff, however, gave no supersedeas bond to stay the judgment, and in due course a special execution and order of sale was issued as directed in the judgment, levy was made upon the property, the property appraised and sale made, at which the defendant J. E. Brogan became the purchaser of the property upon a bid several thousand dollars less than the amount of the judgment; and the sale was confirmed by the court and the entire leasehold and other property involved passed into the hands of J. E. Brogan. The plaintiff in error presents as grounds for reversal, the following:
1. Brogan's evidence is insufficient to support the judgment in his favor.
¶4 The record shows that the greater part of the defendant's claim is for expenses of a fishing job in the oil well. It is not in dispute that J. E. Brogan was to drill a well upon the lease under contract with plaintiff. The plaintiff had agreed to furnish a certain character of casing to be used in the hole. It seems to be admitted that the plaintiff did not comply with this provision of the contract. It is the contention of J. E. Brogan that plaintiff's failure to furnish the character of casing agreed upon, but did furnish an inferior grade of casing, was the cause of his having trouble with the hole. This was the principal matter in dispute upon the trial. The evidence upon this disputed matter is voluminous and conflicting. The trial court resolved the conflict in favor of J. E. Brogan. We have examined the evidence and are unable to say that the conclusion reached by the trial judge is against the clear weight of the evidence. Under repeated holdings of this court, we are not authorized to disturb the finding of the trial court upon a disputed question of fact because of alleged insufficiency of the evidence, unless it be made to appear that the finding is against the clear weight of the evidence.
2. The plaintiff contends that Brogan waived any claim for damages on account of defective casing, by accepting the casing that was furnished.
¶5 There was no express waiver. As to whether there was an implied waiver is primarily a question of fact to be determined from the conduct of the parties. The trial judge, in effect, found there was no waiver, and the record supports the conclusion that there was no waiver by conduct. The contention made is not supported by the record.
3. The plaintiff insists that the defendant J. E. Brogan failed in his proof to show that there was more due him than was tendered in the plaintiff's petition.
¶6 The defendant Brogan claimed that...
To continue reading
Request your trial
-
Thacher v. Int'l Supply Co.
...of the owner, such as the corresponding party did acquire in Arkansas Fuel Co. v. McDowell, 119 Okla. 77, 249 P. 717, and in Nix v. Brogan, 118 Okla. 62, 251 P. 753 this court, as well as most other courts, has restricted the amount of recovery by subcontractors to the contract price agreed......
-
Wiley v. Neff
...and review the evidence, but will not reverse the same unless it is against the clear weight of the evidence. Nix, Trustee, v. Brogan et al., 118 Okla. 62, 251 P. 753; Oliver v. Collins, 123 Okla. 33, 251 P. 729; Sawyer v. W. R. Thompson & Sons, 123 Okla. 146, 252 P. 1; Richardson et al. v.......
-
Nat'l Oil & Dev. Co. v. Bible
...the full interest of the owner of the lease (as in Arkansas Fuel Oil Co. v. McDowell, 119 Okla. 77, 249 P. 717, and Nix v. Brogan, 118 Okla. 62, 251 P. 753), satisfaction of the liens is permitted against the entire leasehold estate. In this case Freeborn was to acquire the entire leasehold......
-
Johnston v. Dill
...far as it pertains to the mortgage and its foreclosure, is conflicting. Therefore, under the rule announced by this court in Nix v. Brogan, 118 Okla. 62, 251 P. 753:"Where a question of fact arising in the trial of an equity case has been decided in the trial court upon the conflicting evid......