Vogel v. Cobb

• Citation: 193 Okla. 64,141 P.2d 276,1943 OK 287
• Decision Date: 21 September 1943
• Docket Number: Case Number: 30980
• Parties: VOGEL et al. v. COBB
• Court: Supreme Court of Oklahoma

1943 OK 287

141 P.2d 276

193 Okla. 64

VOGEL et al. v. COBB

Case Number: 30980

Supreme Court of Oklahoma

Decided: September 21, 1943

Syllabus

¶0 1. ASSIGNMENTS--Cause of action for conversion assignable.

A cause of action in favor of the owner of personalty against a party wrongfully taking and converting the same to his own use is assignable.

2. ACTION--Construction of pleadings to determine whether claim is based on contract or tort.

in determining whether a claim is based upon contract or tort a court may properly consider the allegations of the pleadings and the prayer for relief contained therein, and every doubt in such case will be resolved in favor of the conclusion that the claim is based upon contract.

3. ESTOPPEL--Defendants sued on contract estopped to question validity where their representations induced plaintiff to purchase contract from third party.

Where defendants represented to plaintiff that they were indebted to a third party upon a contract and that if he purchased the same they would pay the amount thereof to him, and plaintiff, relying on such representation, purchased the contract from the third party, the defendants, in a suit thereon by plaintiff, are estopped to make the defense that the original contract between them and the third party was unenforceable.

4. OIL AND GAS--Lease did not give right to free use of water from premises to supply lease houses located on other lands.

A clause in an oil and gas lease providing that lessee is entitled to the free use of "water produced on said land for its operation thereon" does not give the lessee the right to use water therefrom to supply lease houses located on other lands, even though the occupants thereof, as part of their duties, operate the lease in question.

5. PRINCIPAL AND AGENT--Evidence that farm boss of oil company was authorized to compromise claim for damages.

A stipulation that a person was "in charge of the oil and gas operations on" a lease and that he acted as the agent of defendant "with respect thereto" is some evidence that he was authorized to compromise a claim for damages arising from the operation of the lease.

6. LIMITATION OF ACTIONS--Three-year and not two-year statute applicable where plaintiff waives tort and sues on implied contract to pay value of property converted.

The owner of personal property, wrongfully converted by another, may waive the tort and sue upon the implied promise of the wrongdoer to pay the value thereof, and in such case the applicable statute of limitations is the three-year statute found in 12 O. S. 1941 § 95 (2), relating to actions on oral contracts, rather than the twoyear statute found in 12 O. S. 1941 § 95 (3), relating to actions for the taking of personal property.

7. DEEDS--CONTRACTS--Rule of "ejusdem generis" applied to contract or conveyance.

Under the rule of ejusdem generis, where a party or author in a contract or conveyance makes use first of terms each evidently confined and limited to a particular class of known species of things and then after such specific enumeration: subjoins a term of very extensive signification, this item, however general and comprehensive in its possible import, yet, when thus used, embraces things only ejusdem generis, i. e., of the same kind or species, with those comprehended by the preceding limited and confined terms.

8. OIL AND GAS--Under rule of "ejusdem generis" mineral deeds did not convey subterranean water.

Under the rule of ejusdem generis, subterranean water is not conveyed by a grant of the "oil, petroleum, gas, coal, asphalt and all other minerals of every kind or character in and under and that may be produced from" said real property, or a grant of the "oil, gas and other minerals in and under and that may be produced from," the land.

9. NEW TRIAL-Death of court reporter who took evidence making it impossible to set same out in case-made verbatim-Overruling motion was not error where oral evidence was unimportant and appellants' version of same was admitted by appellee.

Where the oral testimony of witnesses involved few issues and was relatively simple, and appellants' contention as to the substance thereof is admitted by the appellee to be true, it is not error for the trial court to overrule a motion for a new trial on the ground that the death of the court reporter has made it impossible to set the same out in the case-made verbatim.

10. NEW TRIAL--Motion denied where newly discovered evidence merely cumulative and diligence not shown.

A new trial will not be granted on the ground of newly discovered evidence where it appears that such evidence is merely cumulative and no showing is made that the same could not have been discovered prior to the trial by the exercise of proper diligence.

Appeal from District Court, Caddo County; Will Linn, Judge.

Action by Sam Cobb against Julius Vogel and the Palmer Oil Corporation. Judgment for plaintiff, and defendants appeal. Affirmed.

Mark H. Adams, Charles E. Jones, and J. Ashford Manka, all of Wichita, Kan., and Theodore Pruett and Grover C. Wamsley, both of Anadarko, for plaintiffs in error.

Sam L. Wilhite, of Anadarko, for defendant in error.

HURST, J.

¶1 The defendant, Palmer Oil Corporation, owns and operates a lease of 80 acres of land now owned by plaintiff, Sam Cobb, but formerly belonging to Thomas Dixon. Prior to July 13, 1940, while Dixon was still the owner of the land, the Palmer Oil Corporation built a road across a portion of the land and drilled a water well thereon from which it used water for its operations on adjoining leases. Because of these acts Dixon claimed damages against the company. On July 13, 1940, Dixon, having previously disposed of the minerals under the land to third parties not here involved, conveyed the surface thereof to plaintiff, and at the same time assigned to him his claims against the Palmer Oil Corporation, which constitute the subject matter of the present action.

¶2 The petition contains seven causes of action. The first is for the recovery of $125, an amount alleged to have been agreed upon between Dixon and defendant as damages for the construction of the road on the leased premises. The next five causes of action are for the recovery of $962, the alleged value of water used in drilling wells and supplying houses located on other. leases, while the seventh and last is for injunctive relief and it not material here.

¶3 At the trial the evidence consisted of a written stipulation, a deposition, and the testimony of several witnesses. Defendants admitted that they used water from the Dixon lease to drill wells on other leases for a period of 53 days and that they supplied water therefrom to two lease houses located on other lands for a period of approximately two years. Although the evidence was conflicting, there was testimony from which the jury could find that the reasonable value of the water used for drilling was from $4.50 to $10 per day, and that the reasonable value of the water used in the lease houses was $2.50 per month. Plaintiff testified that before purchasing the land from Dixon, he inquired of the defendant Julius Vogel, who was employed by the Palmer Oil Corporation as farm boss of the lease, whether his company had agreed to pay Dixon $125 for the road damage; that upon receiving an affirmative reply he informed Vogel that he was bargaining with Dixon for the purchase of the land, and that if he purchased the same he would be compelled to pay Dixon the $125 road damage; that he inquired of Vogel whether in such event the company would repay the $125 to him; that Vogel replied that it would, and that acting upon such statement he paid Dixon the $125.

¶4 The jury returned a verdict in favor of plaintiff for $694, and from a judgment entered thereon, defendants appeal.

1. Defendants first contend that all of the first six causes of action are based upon tort and were not assignable. Although under our statutes actions arising wholly ex delicto may not be assigned (Kansas City, M. & O. Co. v. Shutt, 24 Okla. 96, 104 P. 51, 138 Am. St. Rep. 870, 20 Ann. Cas. 255), this rule does not apply where the wrong complained of "partakes not only of the nature of a tort, but also of an implied contract, being in the nature of assumpsit, as, for instance, the unlawful taking and conversion of money or of other personalty to one's use", for in such a case the injured party may waive the tort and sue upon an implied contract. Kansas. City, M. & O. Co. v. Shutt, above. See, also, Ashton v. Noble, 46 Okla. 296, 148 P. 1042; Stewart v. Balderston, 10 Kan. 131; 6 C. J. S. 1082, 1083; 4 Am Jur. 255.

¶5 It is apparent therefore that the five causes of action based upon a wrongful taking and use of the water were assignable.

¶6 The first cause of action, being based upon the express contract between Dixon and the Palmer Oil Corporation to settle the road damage for $125, was likewise assignable. That plaintiff was suing upon the assigned contract rather than upon the tort is shown by the fact that he prayed for $125, the amount of the agreed settlement, rather than for the actual damage caused by the road. In determining whether a claim is based upon contract or tort "it is proper to examine the pleadings and ascertain from the allegations and prayer thereof the relief sought, and every doubt will be resolved in favor of the contract and against the tort." Stringer v. Kessler, 56 Okla. 50, 155 P. 867.

2. Defendants next contend that under the terms of the lease they had a right to make a reasonable use of the leased premises in the development thereof for oil and gas, and that since plaintiff neither pleaded nor proved an unreasonable or excessive use thereof, both the express contract for road damage and the implied contract for the

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