Sowder v. WARAY OIL CORPORATION
| Decision Date | 24 February 1956 |
| Docket Number | No. 5177.,5177. |
| Citation | 231 F.2d 9 |
| Parties | J. Robert SOWDER, Appellant, v. WARAY OIL CORPORATION, a corporation, Warren B. White and Stanton L. Young, Appellees. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Fred W. Dunlevy, Oklahoma City, Okl. (Jacob M. Usadi, New York City, was with him on the brief), for appellant.
Wallace E. Robertson, Oklahoma City, Okl. (T. Murray Robinson, Oklahoma City, Okl., was with him on the brief), for appellees.
Before MURRAH and PICKETT, Circuit Judges, and MELLOTT, District Judge.
The parties will be referred to as they appeared in the trial court. Plaintiff,1 a resident of New York, sought specific performance of an agreement to sell designated oil and gas leasehold interests in Garfield County, Oklahoma. Judgment was rendered for the defendants, a motion for a new trial on the ground of newly discovered evidence was overruled and plaintiff appealed.
Many of the basic facts were admitted in the answer. White, president of the corporate defendant, had written two letters to plaintiff under date of May 25, 1954. In one the corporation offered to drill a test well on one of its properties "for the sum of $41,250.00 plugged and abandoned, with an assignment * * * of a ¾ths interest" in three leases to plaintiff. The well was to be drilled to a depth "sufficient to test the Arbuckle dolomite at approximately 5200 feet, unless commercial production * * * should be found at a lesser depth." In the other it was stated a "verbal agreement" between the corporation and plaintiff was confirmed, under which "the difference between the amount deposited by * * * plaintiff and the $41,250.00 required to drill the * * * Prospect," would be paid to plaintiff at the time such sum should be deposited. The second was obviously written to enable plaintiff to negotiate a sale of his interest, or a portion of it, to others; and one McCrary, of Texas, ultimately collaborated with plaintiff in an effort to secure the leases upon the payment of the sum named.
The issue raised by the pleadings was whether an attempt by plaintiff and his associate, on or about June 21, 1954, to accept the offer of May 25, 1954 was, under the circumstances, timely, i. e., made while the offer was still open. The trial court resolved it in favor of the defendants, making findings of fact and conclusions of law as required by Rule 52, F.R.C.P., 28 U.S.C.A. Its ultimate finding was: "That plaintiff's evidence does not show that his alleged acceptance of June 21, 1954, was acceptance of any offer open for acceptance at that time." This finding and the three preceding ones2 are assailed as not supported by the evidence.
During the course of the trial and before the findings were made, the court indicated why it felt those now attacked should be made. It was stated that whether the court believed the testimony or not, to the effect that the offer had been specifically withdrawn, plaintiff "would know that it was withdrawn because the test was such as to put an experienced oil man on notice in that area materially." Doubt was expressed that the parties would "act contrary to the ordinary actions of human beings under those circumstances" and the court stated there was "not sufficient evidence here to indicate it." Counsel for plaintiff having called the court's attention to the testimony of plaintiff, which he characterized as "direct and positive," the court stated it could not believe the testimony, saying:
The brief references to the colloquy indicate, as indeed the record clearly shows, that whether the offer had been withdrawn before acceptance was the crucial issue of fact submitted to the trial court upon conflicting evidence. Its findings should not be set aside unless clearly erroneous, and due regard should be given to its opportunity to judge the credibility of the witnesses.3 Applying the usual test whether the findings are "clearly erroneous," this court, after a careful review of all of the evidence, is not "left with the definite and firm conviction that a mistake has been committed."4
Plaintiff argues that the trial court "was obviously influenced too much by the fact that there was a successful * * * test in the offset well," which, it is said, must have been the basis for the court's finding that the offer had been withdrawn by implication. The finding, it will be noted, was that the offer had been "withdrawn, either expressly, by implication, or both." Evidence obviously in the mind of the court included the testimony of plaintiff that the test had made "the value of the property look better" although plaintiff stated he "didn't know whether it would establish the price" mentioned in the offer; also the opinion of a witness called as an expert, who stated "that the very fine positive drill test would add substantially to the value of that acreage"; and the testimony of a vice-president of the company that an extremely good test in the offset well, which he stated the present one was, would treble the value of the acreage in issue. Whether evidence of that type, coupled, as it was, with an expressed feeling of the court that "a drill stem test with a showing like this had greatly increased the possibility of a well," would support a conclusion that the offer had been withdrawn by implication, need not be decided. It was, at least, a circumstance to be considered in resolving a difficult fact question. One somewhat akin is suggested in a quotation from the opinion by the Supreme Court in Twin-Lick Oil Co. v. Marbury, set out in the footnote.5
Recently this court, in Justheim Petroleum Company v. Hammond,6 applied essentially the same principle, holding that a party to a contract for the purchase of an interest in oil and gas properties could not delay, if he wished to rescind the contract, until after drilling had disclosed the property to be valueless or of less value than anticipated.
The contention that the trial court abused its discretion in refusing to open the judgment and permit the introduction of additional testimony and in refusing to grant plaintiff a new trial on the ground of newly discovered evidence remains for consideration. The additional evidence concerns a long distance telephone call which White, the president of the corporate defendant, testified he had placed from his office in Oklahoma City to the plaintiff in New York on June 18, 1954. It would tend to indicate that White made no such telephone call and that the only calls to New York by him on that date were to a Mr. Conway, who was not involved in this lawsuit nor acting directly or indirectly for plaintiff.
The affidavits indicate that the records of the telephone company pertaining to long distance calls made...
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