Towery v. Buck
| Decision Date | 15 March 1921 |
| Docket Number | 10086. |
| Citation | 196 P. 693,81 Okla. 38,1921 OK 88 |
| Parties | TOWERY v. BUCK. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
In a petition containing two causes of action and the defendant at the time of going to trial, tenders and files in court a written withdrawal of his answer to the first count of the petition and confesses judgment to the claim of the plaintiff therein, and under the state of the record there being nothing but a question of law, upon said portion of the case it is error for the court to ignore said confession, and it was the duty of the trial court to have rendered judgment upon said confession for the one in whose favor such confession is made, and in an appeal to the Supreme Court this court will reverse and direct judgment thereon.
Upon the second cause of action in a petition when no question of law is involved but merely a question of fact, and there being conflict in the evidence and a jury is waived and the matter being heard before the court, and the finding of the court upon said facts being reasonably sustained by the proofs adduced, the same will not be disturbed by this court.
Appeal from District Court, Hughes County; George C. Crump, Judge.
Action by William Buck against Joe M. Towery. Judgment for plaintiff, and defendant appeals. Affirmed in part, and reversed in part, with directions.
W. C Farmer, of Wetumka, for plaintiff in error.
J. L Skinner, of Holdenville, for defendant in error.
This cause was commenced in the district court of Hughes county Okl., by William Buck, plaintiff below, defendant in error herein, against Joe M. Towery, defendant below, plaintiff in error herein.
There are two causes of action set forth in the petition of the plaintiff below, defendant in error herein. The first count sets up an agreement between the defendant in error, plaintiff below, and plaintiff in error, defendant below, wherein it was first agreed that the defendant in error was to purchase two tracts of land belonging to the heirs of John Pigeon. One of these tracts contains 60 acres in section 25, township 9 north, range 9 east, and 40 acres in section 15, township 9 north, range 9 east. That the price agreed to be paid by the parties herein for said tracts in the event that they purchased the same from the Indian heirs was $400 for the 40 acres and $800 for the 60 acres. In the event the defendant in error succeeded in purchasing said land, he was to have the 40-acre tract, and the plaintiff in error was to have the 60-acre tract. That in an effort to purchase said lands the plaintiff in error and the defendant in error were compelled to pay $1,700, which was done and the title to both tracts was taken in the name of the plaintiff in error. The defendant in error alleges that of the $1,700 paid for the land, he paid $760, and in his petition the plaintiff in error waived all right and claim to specific performance and asked for a moneyed judgment and interest thereon from February, 1916, and that he be decreed a lien on the 100 acres of land so purchased to secure payment of said judgment, and for all other proper relief.
The second cause of action by the defendant in error against the plaintiff in error was for the recovery of $225 alleged to be due him as the price agreed to be paid to him by plaintiff in error for his one-sixth interest in a tract of land of 120 acres in section 26, township 10 north, range 9 east. That he delivered a deed for said interest to the plaintiff in error, but had not received payment of the consideration of $225, and hence prayed for judgment for $225 against the plaintiff in error and interest from February, 1916, and for cost of action.
The plaintiff in error answered first by a general denial, denying everything except what was specifically admitted, and then admitted that there was an agreement to purchase these two tracts of land as contended in the first cause of action set up in the defendant in error's petition, but stated that only $1,600 had been paid by defendant in error, of which amount plaintiff in error had paid $960 and $150 actual necessary expense, and that the defendant in error had advanced only $640 instead of $760, and for which he was to receive the 40 acres of land, and plaintiff in error offered and stated that he was ready to execute a deed to defendant in error to said 40 acres in pursuance of the agreement.
To the second cause of action, the plaintiff in error denied each and every allegation except what was specifically admitted, and admitted that he had received a deed from the defendant in error of his interest in said tract and that he had paid plaintiff for the execution and delivery of said deed a valuable consideration as agreed upon, to which the defendant in error filed a reply denying every and all the material allegations of the answer and cross-petition of the defendant inconsistent with the allegations of the plaintiff's petition. That on the day of trial, and before going to trial, the plaintiff in error, defendant below, filed in court a confession of judgment as to the first cause of action which was in words and figures as follows, omitting the caption:
"Comes now the defendant in the above-entitled cause of action and asks permission of the court to withdraw his answer heretofore filed to plaintiff's first cause of action in the above matter, and to file in lieu thereof his confession of judgment thereon in the amount asked for in said first cause of action, and hereby consents that judgment may be rendered against him in said first cause of action in the amount asked for in plaintiff's petition thereon in said first cause of action."
This offer of confession by the defendant below was renewed at the close of the evidence of the defendant in error, plaintiff below.
That on the 17th of December, 1917, a jury was waived and the cause was tried by Hon. George C. Crump, judge presiding. Whereupon the evidence was introduced by the parties, and at the close of the evidence the court entered the following judgment:
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