Smith v. Ferguson

• Decision Date: 04 December 1923
• Docket Number: Case Number: 14413
• Citation: 1923 OK 1100,221 P. 447,96 Okla. 150
• Parties: SMITH et al. v. FERGUSON et al.
• Court: Oklahoma Supreme Court

1923 OK 1100

221 P. 447

96 Okla. 150

SMITH et al. v. FERGUSON et al.

Case Number: 14413

Supreme Court of Oklahoma

Decided: December 4, 1923

Syllabus

¶0 1. Appeal and Error--Review--Insufficiency of Evidence--Objections Below--Necessity.

This court reviews errors of law only, and where an assignment of error is that the evidence was insufficient to sustain the verdict of the jury in an action at law, its alleged insufficiency must have been presented first to the trial court by demurrer to the evidence or motion for directed verdict. If such was not done, its sufficiency as a matter of law cannot be considered here.

2. Evidence--Parol Evidence to Affect Written Contract.

Courts must give effect to contracts as made by the parties, unless they fall within inhibited classes, and cannot alter or change them; and the general rule is that the oral negotiations preceding and contemporaneous with the execution of a contract in writing are merged into the written instrument; but where the binding force of the written contract is sought by the obligors therein to be avoided by reason of fraudulent representations as to that for which the contract was made, parol evidence as to the conversations, circumstances, and transactions leading up to the written contract, are competent.

3. Same--Explanation of Technical Terms.

While words technical or peculiar to trades, occupations, or businesses, and therefore their meaning not generally known, may be explained by parol when necessary to give proper meaning to a contract in writing, this rule does not extend to such an explanation thereof as would amount to a construction of the contract different from that evidently intended by the parties.

4. Appeal and Error--Questions of Fact--Construction of Contract.

Where a contract in writing is the basis of the judgment sought, and the same consists of two or more instruments executed at different times, the same should be considered together by the court in arriving at the intent of the parties, and interpretation thereof is for the court. The contract sued on examined, and held, that the construction placed thereon by the trial court did no violence to the evident intent and purpose of the parties, and that the defense of fraud in its procurement being found on conflicting evidence by the Jury against the defendant, the allegations of error based thereon are not well taken.

5. Trial--Withdrawal of Issues on Failure of Evidence.

When the defense of fraud is interposed to a suit to recover on a written contract, and by way of cross-petition the defendants seek to recover against the plaintiffs damages alleged to have resulted to them by reason of plaintiffs' fraud, it is not error for the court to withdraw such issue from the jury when there is no competent evidence from which the jury could fix the amount of damage done the defendants, if the jury found the issue of fraud in their favor.

6. Appeal and Error--Mines and Minerals--Lease Contract--Judgment--Affirmance.

Record examined, and held, that the written contracts were correctly interpreted by the trial court, that the defensive issue was submitted to the jury by proper instructions, and that the judgment based on the verdict in favor of the plaintiffs should be affirmed.

A. Scott Thompson and A. G. Croninger, for plaintiffs in error.

E. C. Fitzgerald, for defendants in error.

BRANSON, J.

¶1 This is an appeal from the district court of Ottawa county, Okla. The appellants were the defendants in the trial court. The parties are referred to here as plaintiffs and defendants, as they bore this relation in the lower court. The plaintiffs are R. W. Ferguson, Haden Osborn, H. P. Baker, J. F Mackey, Chris Wagner, Good Wagner, C. E. Prather, and Geo. Williams a co-partnership, doing business under the firm name and style of Odessa Mining Company, the individual plaintiffs being residents of Missouri but having complied in all respects with the law of this state touching the formation of co-partnerships, and the right to carry on business as such. The defendants are Wesley M. Smith, George A. McConnell, and J. F. Robinson, executor of the last will of James E. Pottorff, deceased. This action was begun by the said plaintiffs in the district court of Ottawa county on the 15th day of April, 1922, and the right of the plaintiffs to recover is based upon a contract for a mining lease and a supplement thereto, in which contract and the supplement thereto, the defendants acquired the mining rights in and to the west half (W. 1/2) of the southeast quarter (S.E. 1/4) of the northeast quarter (N.E. 1/4) of section eighteen (18) in township twenty-nine (29) north, range twenty-four (24) east of the Indian Meridian in Ottawa county, Okla,, in the manner hereinafter set forth. Stripped of the verbiage of the lengthy pleadings and contracts, the transaction out of which plaintiffs secured their judgment in the trial court was as follows:

On the 19th day of February, 1918, and for some time prior thereto, the plaintiffs were the owners of a mining lease on the above described land, and on said last named date the said defendant George A. McConnell entered into a contract for the purchase of said lease with said plaintiffs through their representative, the said George Williams, which was afterwards formally ratified by the other plaintiffs composing the copartnership; under which said contract the said McConnell, in consideration of his assuming the obligations specifically specified therein, acquired "the right to move machinery upon and prospect and mine for ores" on the above described land "for the term and period beginning at this date and ending at midnight on the 20th day of February, A. D. 1927"; the said McConnell covenanting and agreeing to "thoroughly prospect said described land by sinking drill holes and shafts on said land, to prove the extent of the ore, and the richness thereof, and to develop the same and give to the parties of the first part a correct record and log of the holes drilled as soon as completed by delivering same at their office at Miami, Oklahoma."

(This quotation is taken from the contract.)

¶2 The said McConnell further agreed that from the ores sold from said land, payment should be made to the plaintiffs of 171/2 % as their royalty. The said contract further specifically providing that the parties of the first part (the plaintiffs) herein covenant and agree that in the event the party of the second part (McConnell), his heirs or assigns, shall discover or cause to be discovered upon said described land, ores or mineral in substantial or paying quantities, and shall work, mine and develop the same, and shall proceed to carry out the object of this indenture, or contract, by erecting or building on said described property one or more modern mills, or such other crushing, cleaning, reduction, or concentrating works as may be necessary to put in marketable condition the ores and minerals mined and raised on said land, then and in that event, it is hereby agreed and understood that the said parties of the first part shall make, execute and deliver to the said party of the second part, a mining lease, * * * beginning at the date thereof, and ending at midnight on the 20th day of February, A. D. 1927. And in event the said party of the second part (McConnell), his heirs or assigns, do not prospect, mine or develop said land, or cause same to he done, as specified in said contract, his rights shall thereby become of no force and effect. In addition to the above mentioned royalty plaintiffs were to receive from the ores taken from said described tract of land, said contract provided, hace verba, as follows:

"The bonus consideration for this contract is to be $ 30,000 to be paid in the following manner: $ 4,000 cash at the delivery of these presents, $ 4,000 to be paid in 30 days thereafter, $ 5,000 paid when shaft is in ore, and the balance of $ 17,000 to be paid in installments of $ 4,250 each 30 days thereafter until fully paid."

¶3 Take notice that this original contract was made by the plaintiffs with the defendant McConnell solely. McConnell accepted possession of said land and began the carrying out of his obligations assumed thereunder on the 19th day of February, and continued until the 3d day of December, 1918, during which time he had expended in prospecting for ore on said tract the sum of $ 14,743.51, and in order to share his burdens of the further and complete performance of his contract, and in consideration of their paying a like sum to continue the prospecting for and equipment of said tract for the mining of lead and zinc, etc., McConnell on said last named date entered into a contract with his codefendants, W. M. Smith and J. E. Pottorff, since deceased, but who is represented herein by the defendant Robinson, executor of his last will and testament, whereby the said Smith and Pottorff, for a one-half interest in said tract of land described in the first above mentioned contract, agreed to expend the same amount of money heretofore expended on said lease by defendant McConnell. Default being made by the said defendant McConnell and his said selected partners in said enterprise in carrying out the said contract above mentioned, they entered into negotiations with the plaintiffs to supplement the original contract relative to the cash bonus to be paid. This supplement to the original contract was made the 24th day of January 1919, at which time $ 8,000 of the $ 30,000 bonus agreed to be paid had been received by plaintiffs, and the payment of the remaining $ 22,000 of the bonus was by the supplemental agreement provided for as follows:

"The parties of the first part (that is, the plaintiffs) agree to receive the above payments under this supplemental agreement as follows: $ 5,000 is to be paid to the parties of the first part by the parties of the second part when their mill or concentrating plant is ready for operation, then $ 4,250 per month thereafter

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