St. Louis Carbonating & Mfg. Co. v. Lookeba State Bank, Case Number: 6083

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

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

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