Prichard v. Dur
| Decision Date | 15 May 1928 |
| Docket Number | Case Number: 18070 |
| Citation | 267 P. 477,1928 OK 330,131 Okla. 16 |
| Parties | PRICHARD v. DUR. |
| Court | Oklahoma Supreme Court |
¶0 1. Appeal and Error--Review--Judgment in Law Action Reasonably Supported by Evidence not Disturbed.
When a law action is tried to the court without the intervention of a jury, the judgment of the court will not be disturbed on appeal if there is any competent evidence reasonably sustaining the judgment.
2. Same--Judgment Denying Recovery of Interest in Oil Lease Sustained.
Record examined; held, the evidence and facts reasonably support the judgment of the court.
Commissioners' Opinion, Division No. 1.
Error from District Court, Oklahoma County; Lucius Babcock, Judge.
Action by L. H. Prichard against Jacques Dur. Judgment for defendant, and plaintiff appeals. Affirmed.
Allen & Jarman, for plaintiff in error.
T. G. Chambers, Jr., for defendant in error.
¶1 This is an appeal by L. H. Prichard, plaintiff, from a judgment of the district court of Oklahoma county in favor of Jacques Dur, defendant, denying claim of plaintiff to a one-eighth interest in a certain oil and gas lease (20 acres) and the value thereof. The parties appear here as they did in the trial court, and will be so referred to herein.
¶2 On November 13, 1924, plaintiff filed his petition in the cause, wherein he alleged in substance: That in May, 1918, he entered into an oral agreement with one Clark and wife, land-owners in Stephens county, to purchase an oil and gas lease on 20 acres for a cash consideration of $ 6,000, and the further considerations to be specified in the lease whereunder the lessee was to pay an additional sum of $ 1,200 out of first oil produced, and begin drilling within a certain specified time, or pay $ 1,000 cash; that Jacques Dur, together with Guy G. Fischer, Guy Miller, and Roy Armstrong, acting by and through Guy G. Fischer, as his agent, did agree with plaintiff that, if he would procure the delivery of said lease to them, they would pay the initial consideration of $ 6,000, and would assign to plaintiff an undivided one-eighth interest in said lease, the lease to be taken in the name of Guy Fischer, who should hold the legal title temporarily for himself and for the use and benefit of plaintiff to the extent of an undivided one-eighth interest and the respective interests of Dur, Miller and Armstrong; it being understood that except for the initial consideration, plaintiff should bear his proportionate share of the expenses, rentals, etc., due under the lease.
¶3 That in pursuance of said agreement plaintiff did procure and cause to be delivered the said lease to Guy G. Fischer, the same being dated May 29, 1918; that on or about June 8, 1918, the said Fischer, without the knowledge or consent of plaintiff, and without assigning to plaintiff the interest, as was agreed by the said Fischer, acting for himself and as agent of Jacques Dur and others, that he should do, did assign said lease to defendant, Dur; that he, Dur, took said assignment with full knowledge of the agreement which had been entered into with plaintiff on defendant's behalf by the said Fischer; that the defendant, with full notice and knowledge of the rights of plaintiff and without his consent, did on October 21, 1920, fraudulently sell and assign the lease to one Jones, who was an innocent purchaser thereof; that defendant, Dur. has refused to pay plaintiff his proportionate part of the sale price, or account for his share of the value thereof; that plaintiff had at all times been ready and willing to pay his share of the expense incident to the preservation of the lease; alleged the market value of the lease at date of sale by defendant to be $ 30,000, and prayed judgment for one-eighth thereof.
¶4 Defendant answered by general denial with an admission of execution of the lease, the assignment to himself, and the assignment by him to Jones, and specifically denied the agency alleged in plaintiff's petition; further alleged that he purchased assignment for a valuable consideration without notice of any interest or claim of plaintiff. Upon the issues joined a trial was had to the court without a jury, which resulted in a judgment for defendant.
¶5 The following findings of fact and conclusions of law are incorporated in the journal entry of judgment:
¶6 Plaintiff's fifth assignment of error which is: "The findings of fact and conclusions of law are not supported by the law and the evidence," includes and covers the other four assignments of error set out by plaintiff, with the exception of error assigned in overruling motion for a new trial. Plaintiff presents his assignments of error and argument under two propositions, the first being:
"That the trial court clearly was in error, and there was no evidence to support the third or last paragraph of the court's finding of fact."
¶7 Plaintiff says this statement of the facts clearly contradictory to almost every word and syllable of the testimony of defendant himself, and calls attention to certain parts of the evidence, and says defendant's theory of defense was that plaintiff's interest was surrendered by the act of Fischer, that the finding, being erroneous, naturally led to the error in the conclusion of law. The second proposition urged is:
"The trial court clearly erred when he held, as a matter of law: 'That the naked legal title to said lease was passed into and vested in Jacques Dur by the assignment from Guy Fischer, because he already had the equitable title on account of an unauthorized investment of his money in the lease by Miller, Fischer and Prichard.'"
¶8 Plaintiff says the conclusion of law would have been correct had it been based upon a true statement of the record and a sound finding of fact, and asserts that the court clearly overlooked the principle and doctrine of ratification of an unauthorized act of an agent, or of an act purporting to be done by one, although unauthorized, who holds himself out as an agent. Under the second assignment, plaintiff argues that the evidence shows a ratification by the defendant, and cites authorities and cases sustaining the theory and rule of ratification, that a principal may either ratify unauthorized acts or contracts made on his behalf by a mere stranger or volunteer, who has never been his agent, but who has assumed to act as such in the particular transaction, or he may ratify the act of one as his agent for certain purposes, but who, in the particular transaction, acted outside the scope of his authority. That one who accepts the profits of an act done by one assuming to be his agent thereby ratifies his act with all of its burdens as well as its benefits. Wherry v. Luckey, 99 Okla. 239, 226 P. 588; Leasure v. Hughes, 72 Okla. 75, 178 P. 696, and other cases cited.
¶9 Plaintiff's petition alleged that the said defendant, Jacques Dur, together with Guy Fischer, Guy Miller, and Roy E. Armstrong, acting by and through said Guy Fischer, as his agent, did agree with said plaintiff that if the plaintiff would procure the delivery of said oil and gas lease to them, they would pay the initial consideration,...
To continue reading
Request your trial