Stone v. Spencer
| Decision Date | 20 July 1920 |
| Docket Number | Case Number: 9564 |
| Citation | 191 P. 197,1920 OK 265,79 Okla. 85 |
| Parties | STONE v. SPENCER. |
| Court | Oklahoma Supreme Court |
¶0 1. Appeal and Error--Necessity for Objections--Special Findings.
While the right of a party to have the trial court make separate findings of fact and conclusions of law is a substantial right, the rule is well settled that, where the court attempts to make special findings upon the request of a party, and inadvertently fails to make special findings upon some particular matter in controversy, or makes such findings in too general terms, the court does not thereby commit substantial error unless its attention is first called to the omission to find, or to the defective finding and it then fails or refuses to correct the same.
2. Evidence--Parol Evidence Affecting Writings.
When the writing does not purport to disclose the complete contract, or if, when read in the light of attendant facts and circumstances, it is apparent that it contains only a part of the agreement entered into by the parties, parol evidence is admissible to show what the rest of the agreement was; but such parol evidence must not be inconsistent with or repugnant to the intention of the parties as shown by the written instrument.
3. Appeal and Error-- Harmless Error--Admission of Evidence.
A judgment rendered in a case heard without the intervention of a jury will not be reversed on account of the admission of incompetent evidence, unless the record discloses that there was no competent evidence to support it, or in some other way shows affirmatively that the improper evidence affected the result.
4. Appeal and Error--Review of Equity Case--Sufficiency of Evidence.
The judgment of the trial court in an action of purely equitable cognizance will not be reversed on appeal unless said judgment and finding of the court are clearly against the weight of the evidence.
5. Same--Evidence Sustaining Judgment.
The record examined, and held, that the judgment of the trial court is not clearly against the weight of the evidence.
Error from District Court, Oklahoma County; Edward Dewes Oldfield, Judge.
Action by G. B. Stone against W. S. Spencer for dissolution of partnership and accounting. Judgment for defendant, and plaintiff brings error. Affirmed.
Everest, Vaught & Brewer, for plaintiff in error.
Keaton, Wells and Johnston, for defendant in error.
¶1 G. B. Stone filed his petition in the district court of Oklahoma county against W. S. Spencer to dissolve a partnership existing between Spencer and Stone under the firm name of W. S. Spencer and Company, and for an accounting. It was alleged in the petition that W. S. Spencer was indebted to the firm in the sum of $ 2,641, and the partnership was indebted to Stone in the sum of $ 660.19. It was further alleged that the partnership acted as agent for numerous insurance companies in placing their policies and receiving commissions on premiums, and acquired an interest in the expiration on said policies, and plaintiff alleged that the agency for and the expirations of the companies were worth the sum of $ 4,500. It was further alleged that since 1914 the plaintiff and defendant had executed various bonds to the different insurance companies whereby they bound themselves jointly and severally to pay to the insurance companies all premiums upon the policies which they might write less the agent's commission thereon, and that there were premiums written by the partnership amounting to about $ 4,000 uncollected, and the plaintiff was liable to the insurance companies on said bonds for such amount of said premiums as might be collected and not paid to the said companies to the extent of such balance as might be due the said companies, which balance was then in the sum of about $ 1,700. It was further alleged that said partnership had assets consisting of bills receivable, agencies for insurance companies, and expirations on policies theretofore written, debts due from defendant Spencer, office furniture, all of the total value of $ 10,000. That the liabilities of said partnership consisted of amount due plaintiff and amount due different insurance companies, in the total sum of $ 3,000.
The defendant, Spencer, in answer to said petition, pleaded that all of the negotiations regarding the partnership agreement were made by plaintiff with Mrs. Spencer as the agent for W. S. Spencer, and admitted the signing of the contract of partnership, and that the same had existed, and then pleaded that at the time of entering into the contract a part of the consideration for entering into said partnership was the business of the Stone Realty Company, owned by Stone, that was to be brought into the partnership, and Stone represented the returns from said business would amount to some $ 500 or $ 600 a month, but said representations were untrue, and that said business only amounted to some $ 60 or $ 70 a month. It was alleged that at the time of the partnership agreement, and thereafter, there was an oral agreement entered into between Stone and Mrs. Spencer, representing Spencer, that if the plaintiff did not bring into the firm any substantial business, he would withdraw from the firm, and would take out of the firm only what he had put into the firm. It was further alleged in the answer that Stone did not devote his time and attention to the business, but devoted most of his time in attending to his own private business and gave no attention to the partnership business. It was further alleged that the partnership had been dissolved by mutual consent on the 1st day of May, 1916, and the accounts balanced, and that on said date Stone withdrew from the firm and that the parties had a settlement, and in support of said allegation it was averred that Stone dictated a notice of dissolution, which was later published in the Daily Oklahoman, and dictated certain letters to different insurance companies advising them that he was retiring from the company and that W. S. Spencer would retain all accounts and assume all liabilities. It was further pleaded that on said date Stone made a written assignment on a certain contract transferring his interest in the business to Spencer. The answer then by way of cross-petition alleged that the plaintiff, Stone, was indebted to the partnership for certain accounts for insurance that was written on the property which Stone owned or had an interest in, and asked for a judgment against Stone for said amounts.
¶2 Upon the trial of the case to the court, the plaintiff in error requested the court to make findings of fact and conclusions of law as required by section 5716, Revised Laws 1910, and the court dictated to the stenographer the following findings of fact:
¶3 The plaintiff made the following exceptions to said findings of fact and conclusions:
"To all of which findings of fact and conclusions of law the plaintiff excepts and gives notice of appeal and the filing of a motion for a new trial, and asks that same be noted on the journal as requested."
¶4 From said judgment, the plaintiff has appealed to this court. For reversal of said judgment, the plaintiff in error has briefed the case upon three propositions, and stated them as follows:
First: Errors of the court in admitting proof of an oral contract of partnership over the objection of plaintiff.
Second: Refusal of the trial judge to make findings of fact and conclusions of law as required by statute.
Third: The finding of fact that the accounts of plaintiff and defendant were balanced on May 1, 1916, was not sustained by any evidence whatever.
¶5 We will first consider the contention of plaintiff in error that the trial court refused and failed to make findings of fact and conclusions of law as required by statute. It is the contention of plaintiff in error that the statement by the court which is referred to as findings of facts and conclusions of law, did not amount to findings of fact and conclusions of law as contemplated by the statute, but with this we cannot agree. After the court dictated the findings of fact as above set forth, counsel for plaintiff in error did not request additional findings nor make any exception to what purported to be findings for the reason the findings did not constitute findings of fact and were not a compliance with the statute. The only exceptions were to the findings as being supported by the facts. This case is almost identical with the record in the case of Gulf, C. & S. F. R. Co. v. Williams, 49 Okla. 126, 152 P. 395, as follows:
"Whilst the right of a party to have the trial court make separate findings of fact and conclusions of law...
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