Peters Branch of International Shoe Co. v. Blake
| Decision Date | 19 November 1918 |
| Docket Number | 9424. |
| Citation | 176 P. 892,74 Okla. 97,1918 OK 632 |
| Parties | PETERS BRANCH OF INTERNATIONAL SHOE CO. v. BLAKE et al. ELY & WALKER DRY GOODS CO. v. SAME. |
| Court | Oklahoma Supreme Court |
Rehearing Denied Dec. 31, 1918.
Syllabus by the Court.
Upon controverted matters of fact this court will not grant a new trial, where there is competent evidence which reasonably tends to support the verdict of the jury.
We have examined the requested instructions in this case, and, as well, those given to which exceptions were saved, and are of the opinion those requested were properly refused and those excepted to were properly given.
During the trial of a case it is error for the trial judge to absent himself from the room where the trial is in progress so as to lose immediate and instant control over the proceedings; but where an exception to such misconduct of the trial judge is not at the time saved, such error will be deemed to have been waived.
Commissioners' Opinion, Division No. 3.
Error from District Court, Garfield County; James B. Cullison Judge.
Action by the Peters Branch of the International Shoe Company against Grace A. Blake, administratrix of the estate of W. B Blake, deceased, and another; and action by the Ely & Walker Dry Goods Company against the same defendants. Cases consolidated for trial, and verdict and judgment for defendants, and motion for new trial overruled; and plaintiff in each case brings error. Affirmed.
Wilson, Tomerlin & Buckholts, of Oklahoma City, and McKeever & Moore, of Enid, for plaintiffs in error.
P. C. Simons, of Enid, for defendant in error administratrix.
The parties will be referred to as plaintiff and defendant as they appeared in the court below.
The action of the plaintiff Peters Branch of the International Shoe Company is upon an account presented to Grace A. Blake, as administratrix, of the estate of her deceased husband, W. B. Blake, for goods, wares, and merchandise sold and delivered; it being alleged that the merchandise was sold to the partnership, Blake-Green Mercantile Company, of which firm it is alleged that W. B. Blake was a member during his lifetime, and Grace A. Blake was the duly qualified and acting administratrix of the estate of her deceased husband, the account being for $779.25, and the same having been rejected by the administratrix on the 30th day of April, 1914.
The action of Ely & Walker Dry Goods Company was upon a like bill for merchandise presented to the administratrix and by her disallowed on the 2d day of March, 1914; the same being for the sum of $494.80.
The petition of the last-named plaintiff alleges the appointment of Grace A. Blake as the administratrix of the estate of W. B. Blake, deceased, and of the presentment and disallowance of the account. To the petitions, Grace A. Blake, as administratrix of the estate of W. B. Blake, deceased, filed a separate answer in each case, in which she denied generally and specifically all the allegations contained in the petitions, except she admitted that W. B. Blake died on November 19, 1913, and that at the time of his death he was a resident in Grady county, in the state of Oklahoma, and admitted that she was the duly appointed, qualified, and acting administratrix of his estate, and that the plaintiffs had presented their claims to her, and that she had disallowed the same.
The administratrix denied that W. B. Blake and J. F. Green were partners at the time it is alleged the goods, wares, and merchandise were sold to the firm of Blake-Green Mercantile Company and further alleged that, if in fact such partnership ever did exist, it had been dissolved long prior to the time the goods, wares, and merchandise were sold to said firm, and further alleged that the plaintiffs had due notice and knowledge of such dissolution, prior to the time the goods were sold, and further denied that any credit was extended said firm by reason of said partnership existence, and alleged that the goods were sold and credit extended to said firm knowing that J. F. Green was the sole and only member of the firm, and that the credit was extended solely to him, and the goods sold personally to him, and not to any partnership of which W. B. Blake was a member.
The answer of the administratrix is verified by affidavit.
The cases were consolidated and tried to the court and a jury, which returned a verdict in favor of the administratrix, and, a motion for a new trial having been duly presented and overruled, the court rendered judgment in accordance with the verdict, and the case is now before us for review.
The evidence in this case shows that the store referred to, the Blake-Green Mercantile Company, was originally located at Cleo in Major county, Okl., and that it was in charge of the defendant Green. The evidence discloses that W. B. Blake resided at Aline, Okl., in that county where he was engaged in the mercantile business and was interested in a bank, and had other business interests in that part of the county. The evidence discloses that, whatever interest Blake may have originally had in the store referred to as Blake-Green Mercantile Company, he took no active part or interest in its management; that being left entirely to Green. The evidence discloses that he had at one time invested some money in the establishment; but just what his interest was, whether a partner or a creditor in some capacity, was a disputed question upon the trial of the case.
The record discloses that in the year 1913 Blake moved from Major county to Grady county. The contention by the administratrix is made that at about the time he moved from Major to Grady county, Okl., he sold out and disposed of his interest, whatever that was, in the Blake-Green Mercantile Company, to J. F. Green. It is claimed by the administratrix that, some time after Blake had disposed of his interest in the store to Green, the latter moved the stock of goods to Homestead in Blaine county, where he continued to transact business in the name of Blake-Green Mercantile Company.
The evidence in this case as to the time when Blake disposed of his interest to Green was conflicting. The claim being made by the creditors that the partnership continued in existence down to the time of Blake's death in November, 1913, or if there had been a dissolution of the partnership prior to the time of his death, they had no notice or knowledge of it. The claim of the administratrix was that the dissolution was effected about the middle of March, 1913, and the creditors had notice of such dissolution, and notwithstanding such notice afterwards sold the goods, the price of which is in controversy here, to Green.
The contentions thus made being controverted questions of fact, and the jury having found in favor of the administratrix upon the trial of the case, this court will not disturb the verdict of the jury.
It is next claimed that the court erred by refusing to give the following instruction:
There was no error of the court in refusing to give this instruction for the very good reason that the question, as to whether there ever was a partnership existence between W. B. Blake and J. F. Green under the firm name and style of Blake-Green Mercantile Company, was a disputed one, and for that reason alone the court was justified in refusing to give the requested instruction.
It was an admitted fact upon the trial of the case that Blake had invested some money in the enterprise known as Blake-Green Mercantile Company, but as to whether it was a partnership, and whether the relation of partnership between Blake and Green really existed, was a fact to be determined by the jury under the evidence adduced.
The creditors next complain that the court erred by refusing to give requested instruction No. 8:
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