Smith v. Cantner
| Decision Date | 21 November 1939 |
| Docket Number | 29133. |
| Parties | SMITH v. CANTNER. |
| Court | Oklahoma Supreme Court |
Rehearing Denied Jan. 16, 1940.
Syllabus by the Court.
1. Evidence examined and held to support the view that land acquired by defendant in error's testator was owned by him individually and not as a partner of or joint adventurer with the plaintiff in error, and that the decision of the trial court in so holding was not clearly against the weight of the evidence.
2. An agreement between the owner of land and a real-estate broker that the former will divide the profits derived from a sale of land with the latter if the latter procure a purchaser does not in itself make the broker a part owner of the land.
Appeal from District Court, Tulsa County; Leslie Webb, Judge.
Action by Harry Smith against Marie H. Cantner for an accounting and a sale of land in connection therewith. Judgment for defendant, and plaintiff appeals.
Affirmed.
Malcolm E. Rosser and Malcolm E. Rosser, Jr., both of Muskogee, for plaintiff in error.
A. E Montgomery and Carl Cundiff, both of Tulsa, for defendant in error.
Harry Smith, plaintiff in the trial court, plaintiff in error herein, is claiming an undivided one-half (1/2) interest in a quarter-section (1/4) of land located in Tulsa County, Oklahoma. The record title to the land is in the name of Marie H. Cantner, who acquired the same as residuary legatee of Noble A. Hurd, deceased. Hurd acquired title to the land on May 19, 1934. He died about one and a half years later.
This action was commenced in the District Court of Tulsa County on the 20th day of August, 1937, by Harry Smith, as plaintiff, against Marie H. Cantner, as defendant, on the theory that he and the deceased, Hurd, jointly owned the land as copartners or joint-adventurers. The plaintiff sought an accounting and sale of the land in connection therewith.
The cause was tried to the court without the intervention of a jury resulting in a judgment for the defendant.
The testimony produced at the trial was in most respects free from material conflict.
Smith and Hurd entered into an agreement whereby the land in question was to be purchased in contemplation of a possible future sale at an advanced price. Hurd was to furnish the money, take the title to the land, pay the taxes and all other expenses in connection with its upkeep and maintenance. He was also to receive the rents. Smith was to procure a purchaser and the profits from the contemplated sale at an advanced price were to be divided equally.
Hurd borrowed the money to purchase the land from the Citizen's Security Bank at Bixby, Oklahoma. The land was purchased on the date mentioned, supra, but was never sold pursuant to the arrangement between Hurd and Smith.
According to the testimony produced by the plaintiff there was no express understanding as to who would share the losses, if any, except such as might be inferred from the general arrangement between the parties. Testimony was also introduced in behalf of the plaintiff, tending to show that the deceased had in his conversation alluded to the premises in such a way as to indicate a recognition on his part that Smith was part owner thereof. However, such allusions were in most respects informal and such as might be unguardedly made by a man, having in mind any one of several types of existing relationships, with reference to land. The defendant on the other hand produced as a witness, the cashier of the bank who talked to Mr. Smith and Mr. Hurd at the time the loan was made to Hurd. This witness testified that Hurd said the land was his and that if it was not sold by Smith, he expected to keep it.
The trial court held there was no joint ownership of the land and that Smith had no vested interest therein. In support of the decision defendant relies principally upon Nix v. Green et al., 95 Okl. 247, 219 P. 380, wherein we held in paragraph 4 of the syllabus: "Where A. and B. orally agree to attend a government sale of surplus Indian lands, and A. agrees to purchase certain lands to be selected by B., A. to pay the entire consideration for said lands, and the same to be improved by B. after said purchase, but A. to pay all the expenses of making said improvements, and B. in no event to be liable for any portion of said expense of purchasing or improving said lands, and where the lands are to be sold after making said improvements, and A. is to be refunded all expenses incurred in purchasing and improving said lands, and the balance, if any, to be divided equally between A. and B., held, a partnership did not exist between A. and B. in the ownership of said lands; held, further, that B. had no interest in said lands."
We also stated in the body of the opinion that:
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