Preston v. Berry
| Decision Date | 17 July 1951 |
| Docket Number | No. 33200,33200 |
| Citation | 234 P.2d 417,205 Okla. 63 |
| Parties | PRESTON et al. v. BERRY. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
1. The provisions of 12 O.S.1941 § 384, do not disqualify a party as a witness to give testimony in respect to a transaction or communication had personally with a decedent whose executor, administrator, etc., is an adverse party, where title to the cause of action was not acquired immediately from such deceased person.
2. The question of whether a claim is barred by laches must be determined by the facts and circumstances in each case and according to right and justice. Laches, in legal significance, is not mere delay, but delay that works a disadvantage to another.
Ames, Ames & Daugherty, Oklahoma City, for plaintiffs in error.
Cantrell, Carey & McCloud, B. H. Carey, Oklahoma City, for defendant in error.
This is an action wherein Howard K. Berry, the author of the biographical novel, 'Moman Pruiett--Criminal Lawyer,' as plaintiff, seeks an accounting, by Ben Preston and Gail H. Johnson, individually and as partners, as defendants and assignees of Moman Pruiett, of income received by them from the sale of published copies of said novel and further seeks the appointment of a receiver to take charge of their books of account and all unsold copies of said literary work. The parties will be referred to as they appeared in the trial court.
Howard K. Berry was a young practicing attorney in Oklahoma City, Oklahoma, when, in January 1939, after several discussions and an exchange of letters with Moman Pruiett, he began composing and writing in novel form, the biography of the latter. Writing such a composition had been a dream or idea of the plaintiff, for several years, prior to his entry into the practice of law, subsequent to professional instruction in journalism in Missouri University, and while employed on the police force of Oklahoma City. On February 21, 1939, Berry and Moman Pruiett entered into a contract whereby, in consideration of Pruiett furnishing him with material and data for, and lending assistance in, the production of the biographical novel, plaintiff conveyed to Pruiett 'Fifty Percent (50%) or One- half (1/2), of any and all sums collected from the completed production or the marketing thereof.' By the terms of said contract, Berry agreed to assemble the material into book form and to obtain copyright protection in the various fields.
During the following year and a half, Berry devoted practically all of his time, night and day, to the sorting, sifting and selection of the desired material from suitcases full of newspaper and magazine clippings, pictures, documents, etc., furnished by Pruiett. Office or studio space was rented by Berry in hotels and, during a part of the time, Pruiett used the same as living quarters. Berry devoted much time to making out-of-town trips to verify the information and spent some $2,000 in the enterprise. He made contacts with, and secured suggestions from, various editorial staffs of nationally circularized magazines. He employed stenographic help, paying for the same out of his own pocket, as was the case with all the expense incurred. On July 13, 1940, after writing, rewriting, revising, editing and re-editing, the manuscript was sent by Berry to the publishing house of Doubleday-Doran & Co. It was returned with suggestions for further revision and editing. Then followed months of attempting to get the work published.
In response to a request by Pruiett, Berry sent him the manuscript and wrote him the following, in a letter dated September 30, 1941: Over the strenuous objection of defendants, plaintiff was permitted to testify as to the contents of a receipt or memorandum executed by Pruiett at the time of the delivery of the manuscript, wherein he acknowledged the continuing operation of the original contract with Berry. It was defendant's contention that plaintiff was an incompetent witness because of the provisions of 12 O.S.1941 § 384.
Subsequent to the receipt of the manuscript and the above quoted letter, Pruiett contracted with a Mr. Holland for the revision of the manuscript and publication of the book. Nothing constructive was accomplished under this contract. Its sole effect was to necessitate Berry's reconstruction of mutilated parts of the manuscript after much trouble in securing its return. Berry was called to the Army in March, 1944, and thereafter on June 21, 1944, Pruiett made a contract with the Harlow Publishing Company for publication of a number of copies of the book. Later, on July 5, 1944, without knowledge of Berry, Pruiett assigned all his interest in the Harlow Publishing Company contract, above mentioned, the manuscript and the copyright thereof, which Pruiett had obtained in his own name, to the defendants herein, his daughter, Gail H. Johnson, and Ben Preston. Berry knew nothing of this assignment until sometime in February, 1945, some two months after his discharge from the Army. The role of the defendant, Preston, seems to have been the furnishing of necessary financial support to get the book into publication and on the market. The book was being marketed from Pruiett's office in Oklahoma City when, in January, 1945, Berry and Preston had an extensive conversation with reference to future operations. Each discussed the amount of money and effort he had put into the venture and the precarious situation that was caused by having everything handled through Pruiett's office. But it was decided that no change should be made at that time because of the sales value of such an arrangement. This same general situation continued, with neither Berry nor Preston realizing any profit or return out of it, until Pruiett's death on December 17, 1945.
On December 21, 1945, Preston wrote the following letters to Berry:
'Charley Johnson has just called me Long Dist and ask that I come down soon as possible and see about what kind of arrangements can be made on the Book deal, He said you thought you aught to have some Interest in it and so do I, As I know that you put in many long hours in prepairing the manuscript for Moman, Just at this time it is impossible for me to leave here as we are arranging to drill an oil well at Stephenville, Texas. and they are mooving in their rig there to day, They are some things here that I have got to look after and it will be almost impossible for me to get down before the middle of next week, But in the mean time you go over this deal and figure out just what you think of it and the best way to handle it, For I am willing to abide by any thing that is fair and reasonable, and are perfectly willing for you to look after what little interest I have in it,
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...and justice. Laches, in legal significance, is not mere delay, but delay that works a disadvantage to another." Preston v. Berry, 205 Okla. 63, 234 P.2d 417, 422 (1951) (quoting American-First Nat'l Bank of Okla. City v. Peterson, 169 Okla. 588, 38 P.2d 957, 958 (1934)). In order to prove t......
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...it has adhered. Mike v. Gidney, 195 Okl. 472, 159 P.2d 240. Notice also Berry v. Janeway, 206 Okl. 555, 245 P.2d 71, and Preston v. Berry, 205 Okl. 63, 234 P.2d 417. Under Propositions II and IV of the defendant's brief, his counsel argue respectively that in admitting those portions of Ves......
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...in respect to any transaction or communication had personally with the deceased.' The rule above quoted is repeated in Preston v. Berry, 205 Okl. 63, 234 P.2d 417. In the recent case of Clammer v. Fullerton, Okl., 259 P.2d 823, 826, the administrator, in his final report and petition for di......
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