Sartain v. Walker

• Decision Date: 11 July 1916
• Docket Number: 7660.
• Citation: 159 P. 1096,60 Okla. 258
• Parties: SARTAIN v. WALKER ET AL.
• Court: Oklahoma Supreme Court

159 P. 1096

60 Okla. 258

SARTAIN v. WALKER ET AL.

No. 7660.

Supreme Court of Oklahoma

July 11, 1916

Rehearing Denied Sept. 26, 1916.

Syllabus by the Court.

When the evidence offered by the plaintiff is sufficient to make a prima facie case, it is reversible error on the part of the trial court to sustain a demurrer thereto.

It is a well-settled rule that a demurrer to the evidence admits all the facts which the evidence tends to prove or of which there is any evidence, however slight, and all inferences which can be logically and reasonably drawn from the evidence.

The decision of a case by the court upon a demurrer to the evidence is entirely unlike either the decision of a case by the jury upon the evidence or the decision of a case by the court upon a motion for a new trial; for, where the court sustains a demurrer to the evidence, the court must be able to say that admitting every fact that is proved which is favorable to the plaintiff, and admitting every fact that the jury may fairly and legally infer from the evidence favorable to the plaintiff, still the plaintiff has utterly failed to make out some one or more of the material facts of his case.

Court may direct verdict where facts undisputed or of such conclusive character that court in sound judicial discretion would be compelled to set aside verdict returned in opposition to it.

Question is whether there is enough competent evidence to reasonably sustain verdict. All evidence in conflict with evidence against which action is to be taken must be eliminated leaving solely the evidence favorable to party against whom such action is leveled. Incompetent testimony received over objection should be eliminated.

Peremptory instruction should only be given where all reasonable minds would draw the same conclusion and that such conclusion would be against material averments of plaintiff's petition. It is error to direct a verdict where there is a controverted question of fact before jury.

It is the settled rule that a demurrer to the evidence admits every fact which the evidence in the slightest degree tends to prove and all inferences or conclusions that may be reasonably and logically drawn from the evidence. This court will consider as withdrawn all the evidence which is most favorable to the party demurring. If the inference to be drawn from the evidence is a reasonable one, although not a necessary one, the court will not invade the province of the jury by taking from it the right to pass on the facts to be deduced from such inference. A demurrer to the evidence not only admits the truth of the evidence of the demurree, but also all the facts which the evidence in any degree tends to prove, and is a waiver of all the evidence of the demurrant which conflicts with that of his adversary and of inferences from his own evidence.

Commissioners' Opinion, Division No. 4. Error from District Court, Tulsa County; Conn Linn, Judge.

Action by W. P. Sartain against P. G. Walker, Jr., Fred H. Mott Louis E. Hoham, and L. L. Hutchinson. Judgment in favor of defendants, and plaintiff brings error. Reversed and remanded.

Robert J. Boone, of Tulsa, and W. J. Crump, of Muskogee, for plaintiff in error.

A. A Hatch, W. D. Abbott, and Frederic A. Peek, all of Tulsa, for defendants in error.

DAVIS C.

The parties will be mentioned here as in the court below. This action was begun in the district court of Tulsa county, Okl., on November 5, 1913, by the plaintiff filing the following petition, omitting caption and mere formal parts:

"The plaintiff, W. P. Sartain, for his cause of action against the above-named defendants, states:

That on the 2d day of April, 1913, he was the owner in fee of the southeast quarter (S. E. 1/4) of section fourteen (14), township fifteen (15) north, range fifteen (15) east, in Muskogee county, state of Oklahoma; that, being such owner at that time, he entered into a written contract with the said defendant P. G. Walker, Jr., who was acting in his own behalf and as agent for and in behalf of the above-named codefendants; that by the terms of said contract he was to furnish to the said defendants, or to the said defendant P. G. Walker, Jr., their agent and representative, as aforesaid, a gas and oil lease on said land for the term of five (5) years from the date of said lease, and the said defendants were to pay him and did pay the said plaintiff the sum of one hundred ($100.00) dollars in cash at the time of the execution of said contract, and was to pay him the further sum of nineteen hundred ($1,900.00) dollars on the acceptance of said lease, and was to execute to the said plaintiff a note for the sum of two thousand ($2,000.00) dollars, due in sixty (60) days thereafter, signed by all of said defendants, said parties to have five (5) days from the receipt of abstract and papers at Exchange National Bank of Tulsa, Okl., in which to examine title and approve said lease; a copy of said contract is hereto attached, marked Plaintiff's Exhibit No. 1; the original is held subject to the order of the court and the inspection of the parties; that afterwards, in compliance with said contract, he, together with his wife, executed said lease according to the terms of said contract, and sent the same to the Exchange National Bank at Tulsa, Okl., together with a blank note to be signed by said defendants in the sum of two thousand ($2,000.00) dollars, and thereby complied with the terms of the contract executed and described hereinbefore; a copy of said lease is hereto attached, marked Plaintiff's Exhibit No. 2; the original is held subject to the order of the court and the inspection of the parties.

Plaintiff further states that he furnished the defendant with an abstract of title showing that he was the owner of said land in fee simple unincumbered, and that he had a right to let and lease the same, as specified in the contract aforesaid.

Plaintiff states that the said defendants neglected, failed, and refused to accept said lease or to execute the note aforesaid, or to pay the nineteen hundred ($1,900.00) dollars as specified in said agreement, and that they still neglect, fail, and refuse to execute said note, pay said nineteen hundred ($1,900.00) dollars, and accept the lease.

Wherefore plaintiff is damaged in the sum of thirty-nine hundred ($3,900.00) dollars, for which he prays judgment and for all proper relief."

To this petition the following exhibits were attached, made a part thereof, and asked to be considered therewith:

Plaintiff's Exhibit 1.

"Haskell, Oklahoma, April 2, 1913.

This agreement made and entered into this, the 2d day of April, 1913, by and between W. P. Sartain, of Haskell, Okl., party of the first part, and P. G. Walker, of Tulsa, Okl., party of the second part witnesseth: That for and in consideration of four thousand ($4,000.00) dollars, to be paid by second party to the first party, and hereinafter stipulated, one hundred dollars ($100.00) of which amount has been paid to first party, the receipt of which is hereby acknowledged, and the commencing of a well on the southeast quarter (1/4) of the northwest quarter (1/4) of section fourteen (14), township fifteen (15) north, range fifteen (15) east, within ninety (90) days from this date, the first party hereby agrees to execute a regular form of lease to the above-described land and deposit same with abstract of title in the Exchange National Bank of Tulsa, Okl., subject to examination of title by second party. And upon acceptance of title by second party the said Exchange National Bank is to deliver said lease to second party upon the payment of one thousand nine hundred and no/100 dollars ($1,900) to the credit of first party and the execution of a 60-day note to first party for two thousand and no/100 dollars ($2,000), signed by P. G. Walker, Jr., Fred H. Mott, Louis E. Hohman, and L. L. Hutchinson; said second party to have 5 days from the receipt of abstract and papers at Exchange National Bank for examination of title and acceptance of same, and the payment to be made on acceptance of title. And first party further agrees to correct any defects of title, if there be any, within a reasonable time, and to waive the conditions of payment herein agreed to until such defects, if any, are corrected.

W. P. Sartain.

P. G. Walker, Jr.

State of Oklahoma, County of Muskogee--ss.:

I, William E. Combs, a notary public in and for the above-said county and state, hereby certify that the above and foregoing agreement is a true and correct copy of a certain agreement made and entered into on the date as shown by above copy, by the parties whose names are subscribed thereto.

In witness whereof I have hereunto set my hand and affixed my seal as such notary public this 3d day of April, 1913.

[Signed] Wm. E. Combs, Notary Public.

My commission

expires December 29, 1913."

Plaintiff's Exhibit 2.

"Haskell, Oklahoma.

Agreement made and entered into the 2d day of April, A. D 1913, by and between William P. Sartain and Maggie E. Sartain (his wife), of Haskell, Okl., parties of the first part, lessors, and P. G. Walker, Jr., of Tulsa, Okl., party of the second part lessee, witnesseth: The said parties of the first part, for and in consideration of the sum of one dollar in hand well and truly paid by the said party of the second part, and other valuable considerations, the receipt of which is hereby acknowledged, and of the covenants and agreements hereinafter contained on the part of the party of the second part to be paid, kept, and performed, have granted, demised, leased, and let, and by these presents do grant, demise, lease, and let, unto the party of the second part his successors or assigns, for the sole and only purpose of mining and operating for oil and gas, laying pipe

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