St. Louis Carbonating & Mfg. Co. v. Lookeba State Bank

• Decision Date: 25 April 1916
• Docket Number: Case Number: 6083
• Citation: 59 Okla. 71,157 P. 1046,1916 OK 483
• Court: Oklahoma Supreme Court
• Parties: ST. LOUIS CARBONATING & MFG. CO. v. LOOKEBA STATE BANK.

1916 OK 483

157 P. 1046

59 Okla. 71

ST. LOUIS CARBONATING & MFG. CO. v. LOOKEBA STATE BANK.

Case Number: 6083

Supreme Court of Oklahoma

Decided: April 25, 1916

Syllabus

¶0 1. Appeal and Error--Review--Scope and Extent.

Where a case is tried before the court, special findings of fact and conclusions of law made, no exceptions taken to either the findings of fact or conclusions of law, and the only error assigned is that upon the facts found the court erred in its conclusions of law, this court is limited in its inquiry to whether, based upon the facts found, the conclusions of law were correct.

2. Same--Record-- Evidence.

Where the case is tried before the court and findings of fact and conclusions of law made, in order to have the conclusions of law only reviewed here, it is unnecessary to preserve the evidence in the record.

3. Carriers--Carriage of Goods--Special Contract--Bill of Lading.

A. sold certain goods to B. to be paid for in part cash and balance in notes, and upon consigning the goods sent the bill of lading to bank with directions to deliver same to B. upon B.'s making the cash payment and executing the said notes. Upon receipt of bill of lading, bank delivered same to B. without collecting the draft or having B. execute the notes for the deferred payments. Held: (a) Bank is liable to A. for the loss incurred and where B. proffered to A. a sum less than the amount due in settlement of the claim and the same refused, that A.'s claim against the bank was not lessened by the amount tendered. (b) If B. had a valid claim against A. for damage to the articles shipped, the bank's liability to A. was lessened by the amount of such claim. (c) Although B. may be found to be solvent, yet A. has the legal right to look to bank alone for his damage.

Error from County Court, Caddo County; C. Ross Hume, Judge.

Action by the St. Louis Carbonating & Manufacturing Company against the Lookeba State Bank. Judgment for defendant, and plaintiff brings error. Reversed and remanded for new trial.

R. U. Livesay and Theo. Pruett, for plaintiff in error.

Louie E. McKnight, for defendant in error.

MATHEWS, C.

¶1 The parties will be designated as in the trial court. This cause has been before this court once before and is reported in 35 Okla. 434, 130 P. 280, where a complete statement of the pleadings will be found. Upon a retrial of the case judgment was again for the defendant, and plaintiff again appeals.

¶2 The evidence introduced at the trial has not been preserved in the record, and the case-made contains only the pleadings, motions, findings of fact, and conclusions of law and judgment. The cause was tried to the court, who made the following findings:

"The court finds that this case is now before the court by reason of a reversal of the former judgment of this court as found in 35 Okla. 434, 130 P. 280, and a mandate on file ordering a vacation of said judgment, and granting a new trial.

"Second. That there is a reasonable probability that the collection would have resulted, had the notes and mortgages been executed and with the net proceeds of the draft, been delivered to plaintiff.

"Third. That Wade & Hadley, the consignees, were at all times solvent, and that the plaintiff could have procured the amount of their claim by suit against them.

"Fourth. That plaintiff's evidence discloses that Wade & Hadley, by their attorney, McFadyen, offered to pay $ 200 to plaintiff in settlement of the $ 270 claim, and were solvent and able to pay at the time of the offer.

"In answer to interrogatories submitted by plaintiff, the court finds as follows:

"Fifth. Did the defendant bank disregard instructions of plaintiff, and deliver the bill of lading to Wade & Hadley, without collecting the draft and having the twenty $ 10 notes and mortgages signed by Wade & Hadley? Answer: Yes.

"Sixth. Did Wade & Hadley lawfully rescind the contract of purchase of soda fountain and fixtures? Answer: No.

"Seventh. What amount in damages could Wade & Hadley have recouped against the plaintiff herein for alleged breach of contract of purchase and for failure of the goods to be as called for in contract of purchase if the court finds there was any breach of contract of purchase? Answer: Not to exceed $ 20.

"The court makes the following conclusions of law:

"First. The defendant is liable for negligence, and the actual loss is prima facie the amount of the plaintiff's claim, and the burden is on the defendant to show that the damage is less than the full amount sued for.

"Second. That the acts of Wade & Hadley did not constitute a rescission in law of the contract entered into between them and the plaintiff herein.

"Third. The damage sustained by plaintiff is less than the full amount of plaintiff's claim due to the following causes: (a) Plaintiff has shown that it had the opportunity to accept $ 180 additional from Wade & Hadley in settlement of the claim, and its refusal to do so, lessened its damage by that amount. (b) Defendant has shown that there was some damage to the articles shipped, which the court finds was $ 20, and the damage is further lessened by this amount. (c) Defendant has shown that Wade & Hadley were solvent and the collection could have been made from them.

"For the reasons above set out, the plaintiff has not been damaged in any amount. It is ordered and adjudged that the plaintiff take nothing by this action, and that the defendant recover of and from the plaintiff the costs of this action taxed at $ 85.70, to which judgment the plaintiff excepts and exception is allowed.

"[Seal.] C. ROSS HUME, County Judge."

¶3 No exceptions were reserved to either the findings of fact or conclusions of law, but plaintiff filed a motion for a new trial therein assigning that the decision and judgment of the court is contrary to law. There being no exceptions saved to the finding of facts, there is nothing before us to review except the record proper. The findings of fact stand therefore as conclusive, or as an agreed case, and it is for us to inquire only whether the conclusions of law, upon the findings of fact, were correctly pronounced.

¶4 It seems to be the rule in most of the states that in order to raise the question on appeal, it is necessary to save exceptions to the conclusions of law based upon the findings of facts (8 Standard Enc. of Procedure, 1084), but it has been held to the contrary in...