Okla. City Elec. v. Baumhoff

• Decision Date: 24 June 1908
• Docket Number: Case Number: 2050 OK Ter
• Parties: OKLAHOMA CITY ELECTRIC, GAS & POWER CO. et el. v. BAUMHOFF.
• Court: Oklahoma Supreme Court

1908 OK 134

96 P. 758

21 Okla. 503

OKLAHOMA CITY ELECTRIC, GAS & POWER CO. et el. v. BAUMHOFF.

Case Number: 2050 OK Ter

Supreme Court of Oklahoma

Decided: June 24, 1908

Syllabus

¶0 1. APPEAL AND ERROR--Subsequent Appeals--Previous Decisions as Law of the Case. A question decided by the Supreme Court on a former appeal becomes the law of the case in all its stages, and will not ordinarily be reversed upon a second appeal of the same case when the facts are substantially the same.

2. SAME--Decisions by Territorial Court. The same rule applies where the former decision was made by the late territorial Supreme Court, this court being the successor of that court.

3. SAME--Examination of Record. A record on a former appeal in the same action may be looked into for the purpose of ascertaining what facts and questions were before the court, so as to see to the proper application of the rule that such decision is the law of the case.

4. SAME--Trial Court's Conformity to Decision--Finality. If upon a cause being remanded for a new trial, the court below has proceeded in substantial conformity to the directions of the appellate court, its actions will not be questioned on a second appeal.

Error from District Court, Oklahoma County; B. F. Burwell Judge.

Action by G. W. Baumhoff against the Oklahoma City Electric, Gas & Power Company and others. Judgment for plaintiff, and defendants brought error to the Supreme Court of the territory of Oklahoma, whence the cause came by virtue of the enabling act to the Supreme Court of the state of Oklahoma. Affirmed.

Shartel, Keaton & Wells, for plaintiffs in error.

L. F. Parker and Flynn & Ames, for defendant in error.

KANE, J.

¶1 This was a suit brought by the defendant in error, plaintiff below, against the plaintiffs in error, defendants below, to recover damages for breach of the following contract:

"In consideration of the sum of one dollar received from George W. Baumhoff, we hereby agree to sell to said George W. Baumhoff, his successors or assigns, fifteen hundred shares, constituting all of the shares of the capital stock of the Oklahoma City Electric, Gas & Power Company of Oklahoma City, Oklahoma Territory, of the par value of one hundred dollars each, for the sum of one hundred and twenty thousand dollars to be paid in cash. This sale to be consummated within ten days after an amendment duly passed by ordinance to be mutually agreed upon between the president and secretary of the same company and the purchaser before the same is introduced in the council. The above shares of stock shall convey all the property, rights, privileges, grants and franchises of said Oklahoma City Electric, Gas & Power Company, free of debts of all kinds, excepting a sum not exceeding $ 2,000.00 for eight-inch gas pipe now on the grounds and en route as billed from the Dimmick Pipe Company of Birmingham, Ala., and one electric generator from the Western Electric Supply Co., of St. Louis, at not exceeding $ 2,000.00, which the purchaser assumes and is to pay for within ten days after the passage of an ordinance by the city council and approval by the mayor of Oklahoma City, O. T., satisfactory to the purchaser. The sum of one hundred and twenty thousand dollars in cash is to be paid by the purchaser within thirty days after such ordinances amending the franchise of said company satisfactory to the purchaser is adopted. The purchaser to take possession of the property at once upon the payment of the entire consideration of the property. It is further agreed that any betterment which may be required such as lamps, meters or wire bought before December 30th, 1901, shall be paid for by the purchaser."

¶2 The petition sets up a copy of the contract and alleges its execution by the parties; the readiness at all times of the plaintiff to perform, his request of the defendants to perform, and their refusal; the passage, on February 15, 1902, of three ordinances amendatory of the defendants' franchise; the plaintiff's satisfaction with these ordinances and the renewal of his effort to perform after their passage, and the renewal of the defendant's refusal to perform; that the ordinances so passed were pursuant to the terms of and in performance of the contract sued on; the sale of the property by the defendants to other purchasers, and the damages sustained by the plaintiff. A demurrer was interposed to this petition, which was sustained by the district court, and on appeal to the Supreme Court of the Territory of Oklahoma by the plaintiff the judgment of the district court was reversed and the case remanded for further proceedings, and upon these proceedings is predicated the error complained of herein.

¶3 The case, as it appears in the Supreme Court of the territory on the former appeal, under the title of "George W. Baumhoff vs. Oklahoma City Electric, Gas & Power Company, G. W. Wheeler and G. N. Beebe," is reported in 14 Okla. 127, 77 P. 40, where the petition is set out in full. The parties and the petition are the same now as on the former appeal, except that the plaintiffs in error now were defendants in error then, and the defendant in error now was plaintiff in error then. After the case was remanded by the Supreme Court of the territory, the defendants filed an amended answer consisting of a general denial; a denial that the consideration of $ 1 recited in the contract had been paid; a plea that the defendants were to use their influence in procuring the passage of the ordinance which the defendants allege made the contract void as against public policy; an allegation that the plaintiff and the defendants never agreed upon the amendment which was to be secured, and that on the 1st of January defendants notified the plaintiff that they refused to be further bound by the contract. To this answer the plaintiff filed a reply, and upon the issues thus joined the cause was tried to a jury, and a verdict rendered in favor of plaintiff, upon which judgment was duly entered. From this judgment the defendants prosecuted their appeal to the Supreme Court of the territory of Oklahoma, and, the same being undisposed of upon the admission of Oklahoma as a state, it was transferred to this court under the terms of the enabling act and the Schedule to the Constitution.

¶4 The assignments of error argued by counsel for plaintiff in error in their brief are grouped as follows:

(1) "The overruling of the objection to the introduction of evidence under the petition upon the ground that the same fails to state facts sufficient to constitute a cause of action." (2, 3, 4) "The court erred in overruling the demurrer of the defendants in the court below to the evidence introduced by the plaintiff upon the ground that the same was insufficient in law to prove any cause of action in favor of the plaintiff and against the defendants. The court erred in refusing at the end of the trial to give the peremptory instruction requested by the defendants upon the ground that the evidence as a whole entitled the defendants as a matter of law to judgment."

¶5 Counsel for defendant in error insists that the former decision rendered by the Supreme Court of the territory of Oklahoma is conclusive upon this court, for the reason that all the questions raised in this court were presented to the Supreme Court of the territory and passed upon, and that opinion is now the law of the case. The evidence adduced at the trial fairly tends to support the allegations of the petition, so the assignments of error grouped above present to this court the same questions raised on the former appeal, where the assignments of error were predicated upon the ruling of the court below in sustaining a demurrer to the petition.

¶6 It seems to be a well-settled rule of general application that the determination of an appellate court in a case is the law of that case. No question necessarily involved and decided on that appeal will be considered on a subsequent appeal or writ of error in the same case. Red Mountain Min. Co. v. Jefferson Co. Sav. Bank, 113 Ala. 629, 21 So. 74, 59 Am. St. Rep. 151; Montgomery v. Gilmer 33 Ala. 116, 70 Am. Dec. 562; Chamberlin v. Browning, 177 U.S. 605, 20 S. Ct. 820, 44 L. Ed. 906; Ouray County v. Geer, 108 F. 478, 47 C.C.A. 450.

"Questions decided in the same case on the same or substantially the same facts, by one appellate court, are binding on a subsequent appeal in another appellate court having like jurisdiction. A change in the membership of the court since the first appeal, or the creation or organization of a new court succeeding to the appellate jurisdiction of the court by which the first appeal was heard, will not affect the application of this rule." (3 Cyc. 399.)

¶7 In a case in the Supreme Court of South Dakota (...