Templeman v. Walker

• Decision Date: 30 October 1934
• Docket Number: Case Number: 23274
• Citation: 52 P.2d 737,1934 OK 612,175 Okla. 366
• Parties: TEMPLEMAN et al. v. WALKER.
• Court: Oklahoma Supreme Court

1934 OK 612

52 P.2d 737

175 Okla. 366

TEMPLEMAN et al. v. WALKER.

Case Number: 23274

Supreme Court of Oklahoma

Decided: October 30, 1934

Syllabus

¶0 1. Partnership--Action by Member of Partnership Against Other Members Asking for Appointment of Receiver and for Accounting and Dissolution Held an Equitable Action Governed by Procedure Applicable Thereto.

An action instituted by one member of a partnership as plaintiff against the other members of the alleged partnership as defendants in which the plaintiff alleges that the defendants have dissipated the assets and mismanaged the affairs of the partnership and have been appropriating its property and effects to their own uses and asking for the appointment of a receiver for the partnership, and that an accounting be had and taken of its transactions and affairs and that it be dissolved, and for such other and further relief as equity and justice may require, is an equitable action and governed by the procedure applicable thereto.

2. Contracts--Construction of Unambiguous Contract as Matter of Law for Court-- Circumstances Surrounding Execution of Contract as Aid in Determining Intention of Parties.

The construction of a written contract which is unambiguous in its terms and where no fraud is alleged by either party in the procurement thereof, and where both parties to the action rely upon such written contract, is a matter of law for the court, but in construing such contract the court may take into consideration the facts and circumstances surrounding the execution thereof as an aid in determining the intention of the parties to be gathered from the language used in such contract.

3. Appeal and Error--Pleading--Review-- Parties Bound by Allegations and Admissions Therein.

The pleadings in an action define the issues to be tried by the court, and the parties thereto are bound by the allegations and admissions made therein, unless the same are withdrawn or changed by amendment thereto. It is not the office of this court to frame a new set of pleadings for the parties to an action in an effort to justify the result reached by the lower court, notwithstanding the rule that where upon the trial of a cause evidence is introduced by one party without objection by the other party, and which evidence tends to sustain, or is relevant to the judgment of the lower court, that the pleadings will be considered as amended to conform to the proof.

Maxey, Holden & Holleman, for plaintiffs in error.

Holtzendorff & Holtzendorff and C. B. Holtzendorff, for defendant in error.

PER CURIAM.

¶1 This was an action instituted by W. L. Walker, as plaintiff, against W. E. Templeman, N.E. Templeman, and J. A. Pringle, as defendants, in the district court of Tulsa county, the petition being filed on January 29, 1931. The petition is very short, and, omitting the caption, reads as follows:

"Now comes the plaintiff and for his cause of action herein alleges:

"(1) That heretofore, and on or about the 8th day of February, 1926, this plaintiff and the defendants herein, W. E. Templeman, N.E. Templeman, and J. A. Pringle above named, entered into a written agreement of partnership of which a true and correct copy is hereto attached, hereby made a part hereof and marked 'Exhibit A'.

"(2) That although this plaintiff has always complied with all of its terms the defendants, and each of them, have utterly failed in the performance of the covenants and requirements of the said agreement on their part to be kept, done and performed or to account for their transactions thereunder and have dissipated the assets and mismanaged the affairs of the said partnership, and are and have been appropriating its property and effects to their own uses.

"Wherefore, the plaintiff asks that a receiver be appointed for the said partnership, and that an accounting be had and taken of its transactions and affairs and that it be dissolved and for such other and further relief as equity and justice may require."

¶2 This petition was signed by counsel for plaintiff and was verified by the plaintiff.

¶3 Exhibit "A" attached to the petition is a contract, evidenced by a letter dated February 8, 1926, addressed to the plaintiff, signed by the defendants, and having thereon the following indorsement:

"The above is correct and is hereby accepted and agreed to. Tulsa, Oklahoma, Feb. 8, 1926. W. L. Walker."

¶4 Inasmuch as this instrument is the partnership agreement alleged by the plaintiff to have been entered into by him with the defendants, and likewise admitted by the defendants to have been entered into by them with him, and is the instrument by which the rights of the parties hereto are to be measured, it will be here copied in full, with the exception of the schedule of the leases therein referred to. It is as follows:

"832 Kennedy Building

"Tulsa, Oklahoma,

"February 8, 1926.

"Mr. W. L. Walker,

"Tulsa, Oklahoma.

"Dear Sir,

"We have this day executed in your favor our note in the sum of $ 3,500, due 75 days from date, with interest at the rate of eight per cent. per annum from maturity, for which you have paid lis a like amount in cash, the receipt of which is hereby acknowledged.

"We have entered into an agreement with O. E. Bradley, dated January 19, 1926, whereby we have agreed to take over a certain block of leases in Butler county, Kan., and drill a well thereon for oil and gas, said leases covering the following described land: * * *

"The $ 3,600 above mentioned is to be used for the payment of bonuses and abstract expenses on these leases. Out of the proceeds from the sale of all or any portion of the above leases, we are to reimburse you in the sum of $ 3,500, and the note we have executed to you is to be returned to us upon such payment.

"It is understood that we are to deduct from sums received for the sale of said leases, in addition to the amount of said note, such sum or sums as will cover fully the cost of drilling, equipping and completing a well for oil and gas on said block of acreage, together with all expenses incurred by us in connection with the same.

"It is also understood that the assignments to said leases are held in the name of N.E. Templeman and when we have reimbursed you in the amount of the above- described note and have been reimbursed ourselves for expenses incurred and hereafter to be incurred in connection with the drilling, equipping and completing of said well, we are to deliver to you assignments covering an undivided one-fourth interest in and to whatever portion of the above-described leases we have remaining unsold. Of course, in the event that the sale of the leases should more than cover the amount of said note and expenses incurred for the drilling, equipping and completing of said well, you are to have your one-fourth of such money or profit on said block.

"It is further understood that in the event of production in said well and it should become necessary to drill further wells or to develop the property, you will advance to us, or reimburse us from time to time, as statements are rendered, for moneys expended by us for such operation and development, your proportionate part, or one-fourth of such amounts so expended by us.

"This letter is signed in duplicate, either copy of which may be regarded as the original.

"If the above is your understanding of this transaction, kindly note your acceptance on the bottom of this letter and return the original to us.

"Yours very truly,

"(Signed) W. E. Templeman.

"(Signed) N.E. Templeman.

"(Signed) J. A. Pringle.

"The above is correct and is hereby accepted and agreed to. Tulsa, Oklahoma, Feb. 8, 1926. W. L. Walker."

¶5 Without in any manner questioning the sufficiency of the allegations of this petition, the defendants filed thereto their answer and cross-petition, which may be summarized as follows:

(1) A general denial as to all matters not specially admitted.

(2) An admission that they entered into a contract with the plaintiff, evidenced by the letter of February 8, 1926, a copy of which is attached to the petition, marked Exhibit "A".

(3) An admission that a mining partnership was created by the terms of said contract and that the partners thereto were mining partners in so far only as said interests relate to the property described in said contract; that is, that the parties were not general mining partners, but partners in the leaseholds referred to in such contract.

(4) A denial that the plaintiff had complied with the terms of the contract on his part, and a denial that the defendants had failed to comply with its terms on their Dart.

(5) An allegation that prior to the entering into of such contract, on the 19th day of January, 1926, the defendants had made a contract with one O. E. Bradley whereby said defendants, through N.E. Templeman, as trustee, agreed to drill a well on a part of the acreage described in said contract, a copy of which contract with Bradley is attached to the answer, marked exhibit "A". That said Bradley held such leases under and by virtue of an escrow agreement deposited with the Citizens Bank of El Dorado, Kan., a copy of which escrow agreement is attached to the answer, marked Exhibit "B". That the said Bradley was by such contract obligated to commence the drilling of said well prior to March 1, 1926, and that the defendants, by reason of their contract with the said Bradley, agreed to commence said well on said date.

(6) That pursuant to said contract they commenced said well on February 17, 1926, and drilled the same in accordance therewith to a depth of 2,820 feet, and completed' such well on August 21, 1926, and that it was a dry hole and was abandoned.

(7) That by the terms of the contract between the plaintiff and defendants, the defendants were to sell, or attempt to sell acreage out of said block and from the proceeds thereof were to reimburse themselves for the expense and cost of drilling, equipping, and completing said well, together with all expense incurred in connection with the same, and in the event the sale of leases

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