Tuloma Pipe & Supply Co. v. Townsend

• Decision Date: 01 March 1938
• Docket Number: Case Number: 27829
• Citation: 77 P.2d 535,1938 OK 151,182 Okla. 321
• Parties: TULOMA PIPE & SUPPLY CO. v. TOWNSEND
• Court: Oklahoma Supreme Court

1938 OK 151

77 P.2d 535

182 Okla. 321

TULOMA PIPE & SUPPLY CO. v. TOWNSEND

Case Number: 27829

Supreme Court of Oklahoma

Decided: March 1, 1938

Syllabus

¶0 1. APPEAL AND ERROR - Review of Equity Case - Conclusiveness of Findings.

"In a purely equitable action, the presumption is in favor of the finding of the trial court, but this court will consider the whole record and weigh the evidence; such findings as are not clearly against the weight of the evidence will stand affirmed on appeal, but where other findings are clearly against the weight of the evidence, this court will enter or cause to be entered such findings as the trial court should have made." Douglas v. Douglas. 176 Okla. 378, 56 P.2d 362.

2. REFORMATION OF INSTRUMENTS - Relief Limited to Making Writing Speak Former Agreement of Parties.

"Relief, by way of reformation of written instruments which may be had under proper circumstances in a court of equity, is limited to making the writing speak the former agreement of the parties, and the court cannot make a new or different contract for the parties." Douglas v. Douglas, 176 Okla. 378. 56 P.2d 362.

3. SAME - Essentials of Mutual Mistake as Ground for Reformation.

Where a party relies for reformation of a written instrument on the ground of mutual mistake, it must be such mistake as he could not by reasonable diligence get knowledge of when he was put on inquiry.

Appeal from Court of Common Pleas, Tulsa County; Floyd E. Staley, Judge.

Action by L.D. Townsend against the Tuloma Pipe & Supply Company. Judgment for plaintiff, and defendant appeals. Affirmed.

S.F. Goldwyn, for plaintiff in error.

R.K. Robertson and Wm. Taylor, for defendant in error.

RILEY, J.

¶1 L.D. Townsend, defendant in error, filed an action against Tuloma Pipe & Supply Company, plaintiff in error, seeking to recover an alleged balance due under a contract. From a verdict of $886.08, the amount sued for, defendant brings this appeal.

¶2 The parties will be termed plaintiff and defendant, as they appeared below.

¶3 The only question is whether the judgment and decree of the court is sustained by the evidence.

¶4 On about the 10th of June, 1935, the plaintiff, who owned a certain leasehold in Creek county with an oil well thereon, was approached by H.E. Harvey, defendant's agent, who desired to negotiate a purchase of the same. After preliminary discussions and an inspection of the leasehold and equipment thereon, Harvey called the defendant and was directed to bring plaintiff to its offices in Tulsa.

¶5 Mr. Madvine, president of the defendant company, discussed the deal with plaintiff in the presence of Harvey, and then all went to the office of defendant's attorney, where they prepared a contract, the pertinent parts of which are:

"It is agreed and understood by the parties hereto that Buyer represents that there are located on said leasehold estate and in said well the following described oil field equipment and casing, to wit:

"1 25 H.P. Franklin engine; 1 wood derrick; 2 100 bbl. tanks; approximately the following quantities of pipe, namely 5,000 feet of 2" line pipe; 3,165 ft. of 5-3/16" lapweld casing; 350 ft. of 15 1/2" lapweld casing; 840 ft. of 12 1/2" lapweld casing; 1,632 ft. of 10" lapweld casing; and 3,450 ft. of 2" tubing and rods.

"It is distinctly understood by the parties hereto that upon approval of title by buyer's attorney, the buyer shall pay to seller the sum of seventeen hundred fifty ($1,750.) dollars cash, and, in the event buyer desires to produce from said lease, then, and in that event, the balance of eight hundred fifty ($850) dollars shall be paid to seller within six months from the date said amount of seventeen hundred fifty ($1,750) shall have been paid. In the event Buyer desires to remove the equipment from the said lease and the casing from said well at any time within six months from the date the said sum of seventeen hundred fifty ($1,750) dollars shall have been paid, and it is discovered that the quantities, as more specifically set out hereinabove, are not located thereon or in said well, then an adjustment shall be made on the amounts lacking based on the market value of said equipment and casing, not to exceed the sum of eight hundred fifty ($850) dollars. It is distinctly understood, however, that seller shall not be responsible to buyer for any casing left in the hole when said casing is removed therefrom.

"It is further agreed that in the event buyer decides to remove said casing from the well within the time specified above and that upon pulling the same there is contained therein a string of 6 5/8" casing or a string of 8 1/4" casing, then buyer agrees to pay to seller the additional sum of twelve and one-half cents (12 1/2c) a foot for the 6 5/8" casing recovered from said well, or the sum of seventeen and one-half cents (17 1/2c) a foot for the 8 1/4" casing recovered from said well.

"It is distinctly understood that in the event Buyer's attorney does not approve Seller's title to the property or seller cannot comply with whatever requirements are made by buyer's attorney within ten days' time after examination of abstract of title, then this contract shall become null and void and both parties hereto shall automatically be released therefrom. Upon approval of said title and payment of said sum of seventeen hundred fifty ($1,750) dollars, seller shall execute proper instruments conveying to buyer all of the said property included herein."

¶6 Title was approved, $1,750 paid plaintiff, and defendant took possession. After some efforts to make the well a producer, the defendant decided to remove the equipment.

¶7 Much of the casing was pulled, including some 6 7/8" and 8 1/4" valued at $36.08, but only a small quantity of the 12 1/2" and the 15 1/2" casings were obtained. The remainder of these two sizes were cemented together and could not be removed.

¶8 To the plaintiff's petition, which sought recovery for balance due under the contract, defendant filed an answer and cross-petition verified by Mr. Madvine, pertinent portions of which are as follows:

"Defendant in this regard says that at the time of the negotiations between the plaintiff and defendant, by and through its agent, H.E. Harvey, looking to the withdrawal of the casing from the well, the

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