Pennok Oil Co. v. Roxana Petroleum Co. of Oklahoma

• Decision Date: 19 April 1923
• Docket Number: 6083.
• Parties: PENNOK OIL CO. v. ROXANA PETROLEUM CO. OF OKLAHOMA.
• Court: U.S. Court of Appeals — Eighth Circuit

289 F. 416

PENNOK OIL CO. v. ROXANA PETROLEUM CO. OF OKLAHOMA.

No. 6083.

United States Court of Appeals, Eighth Circuit.

April 19, 1923

Alvin Richards and Preston C. West, both of Tulsa, Okl. (Roger S Sherman, Grey Moore, and A. A. Davidson, all of Tulsa, Okl on the brief), for plaintiff in error.

William F. Fahey and John J. Yowell, both of St. Louis, Mo. (Koerner Fahey & Young, of St. Louis, Mo., on the brief), for defendant in error.

Before SANBORN and KENYON, Circuit Judges, and SYMES, District Judge.

KENYON Circuit Judge.

Defendant in error brought suit in the District Court of the United States for the Western District of Oklahoma to recover the sum of $25,000, which it claimed to have paid by virtue of a certain contract made with plaintiff in error by letters and telegrams whereby defendant in error obtained the right to buy from plaintiff in error oil and gas rights in certain properties in Oklahoma designated in the petition as the 'Parker properties.' Defendant in error in the trial court based its claim on two counts: First, that there were false and fraudulent representations and that it was led into making said contract by said representations; second, a failure of consideration. The case was tried to the court, a jury being waived by written stipulation under section 1587, U.S. Compiled Statutes. The court found generally in favor of the defendant in error and entered judgment against plaintiff in error for the sum of $25,000 and costs.

At the close of the evidence requests were made by plaintiff in error for certain findings as propositions of law. There was no motion or request at the conclusion of the evidence to find for plaintiff in error upon the ground that there was no substantial evidence to support a judgment against it. Thus we have a situation often presented where a case is tried to the court by written agreement under the federal statute, and the right of review in this court limited by the condition of the record; the statute giving to the findings of the court, whether general or special, the same effect as to facts, as a jury verdict. It has been settled by many decisions, in this jurisdiction and elsewhere, that when an action at law is tried by the court upon a written waiver of jury, the appellate court cannot consider the question of whether or not there is substantial evidence to support the trial court's finding unless the question is raised and presented in that court for its decision. United States v. Atchison, T. & S.F. Ry. Co. (C.C.A.) 270 F. 1; Wear v. Imperial Window Glass Co., 224 F. 60, 139 C.C.A. 622; Consolidated Coal Co. of St. Louis v. Polar Wave Ice Co., 106 F. 798, 45 C.C.A. 638; Searcy County v. Thompson, 66 F. 92, 13 C.C.A. 349. In Seep v. Ferris-Haggarty Copper Mining Co. et al., 201 F. 893, 120 C.C.A. 191; this court pointed out clearly, where there was a trial of a law action with waiver of jury, the method of preserving questions for review. See, also, on the general subject, McMaster v. New York Life Ins. Co., 99 F. 856, 40 C.C.A. 119; Webb et al. v. National Bank of Republic of Chicago, 146 F. 717, 77 C.C.A. 143; Mound Valley Vitrified Brick Co. v. Mound Valley Natural Gas & Oil Co., 205 F. 147, 123 C.C.A. 478; Felker v. First Nat. Bank of Cincinnati, Ohio, 196 F. 200, 116 C.C.A. 32; Tiernan et al. v. Chicago Life Ins. Co., 214 F. 238, 131 C.C.A. 284; McClay v. Fleming (C.C.A.) 271 F. 472; Stanley v. Supervisors of Albany, 121 U.S. 535, 7 Sup.Ct. 1234, 30 L.Ed. 1000.

In view of this record, let us examine the assignments of error to determine what is properly before us. Assignments of error No. 3 to No. 15, inclusive, relate to questions of fact or to mixed questions of law and fact, and the court having made a general finding, it is the same as the verdict of a jury, and as said by this court in United States Fidelity & Guaranty Co. v. Board of Commissioners of Woodson County, Kan., 145 F. 144, 151, 76 C.C.A. 114, 121, 'concludes all issues of fact and all mixed questions of fact, and law, save the questions of law reserved by demurrer, motion, request, or exception. ' American Credit Indemnity Co. v. Athens Woolen Mills, 92 F. 581, 34 C.C.A. 161; Humphreys v. Third Nat. Bank of Cincinnati, Ohio, 75 F. 852, 21 C.C.A. 538; Martinton v. Fairbanks, 112 U.S. 670, 673, 5 Sup.Ct. 321, 28 L.Ed. 862; Stanley v. Supervisors of Albany, 121 U.S. 535, 7 Sup.Ct. 1234, 30 L.Ed. 1000.

Assignment of error No. 16 is in reality that there is no substantial evidence in the record to sustain the cause of action set forth in the complaint. It is not tenable, because the complaint clearly states a good cause of action, and because the question whether there was any substantial evidence to sustain that cause of action was not presented by proper request, ruling, and exception before the trial closed.

Assignments of error No. 17 and No. 18 are too insufficient and indefinite to raise any question for review. United States v. Atchison, T. & S.F. Ry. Co. (C.C.A.) 270 F. 1; Ireton et al. v. Pennsylvania Co., 185 F. 84, 107 C.C.A. 304; Chicago Terminal Transfer R. Co. v. Bomberger, 130 F. 884, 65 C.C.A. 64; United States Fidelity & Guaranty Co. v. Board of Commissioners of Woodson County, Kan., 145 F. 144, 76 C.C.A. 114; Webb et al. v. National Bank of Republic of Chicago, 146 F. 717, 77 C.C.A. 143; Morris et al. v. Canda et al., 80 F. 739, 26 C.C.A. 128.

The application of the principles of law herein referred to preclude us from considering any of the assignments of error except No. 1 and No. 2.

Assignment of error No. 1 relates to the request made at the close of all the evidence for certain findings of law. In a case tried to the court under section 1587, U.S. Compiled Statutes, when request is made to find propositions of law claimed to be applicable, and the court refuses so to do, and exceptions are taken, reviewable questions are presented to this court. The requests presented in this case, while designated as propositions of law, are really for findings of fact or mixed questions of law and fact, with the exception of request No 11, and with that exception are settled by the general finding of the court. The court refused the requests 'in so far as granting them might be favorable to the defendant, and they have not already been covered by...