West v. Madansky
| Decision Date | 14 September 1920 |
| Docket Number | 9297. |
| Citation | 194 P. 439,80 Okla. 161,1920 OK 297 |
| Parties | WEST v. MADANSKY. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
Where a petition contains a misjoinder of causes of action, the defect is raised by demurrer, and not by motion to require the pleader to elect.
The fact that a petition may show that plaintiff is entitled to relief, either in law or equity, because of a single wrong done to him by defendant, and the fact that he may pray for relief in law, if relief in equity be impracticable, do not constitute two distinct causes of action, nor render the petition defective for misjoinder.
"Where a court of equity has obtained jurisdiction to cancel an instrument or rescind a contract, it will usually give complete relief in the premises." 3 Elliott on Contracts, 2461.
Under our statutes and the system of code pleading in this state the district courts are endowed alike with the powers of a chancellor and a court of law, and where upon a given statement of facts, constituting but a single wrong, but which show the plaintiff entitled to relief, either in law or equity, and it is shown by the testimony that under the conditions it would be impracticable to render relief in equity, then the court will retain jurisdiction and grant such relief in law as under the allegations and evidence the plaintiff is entitled to receive.
A fiduciary relation does not arise in law between tenants in common merely because of such common ownership, but when one of the tenants in common is created an agent for all the others, for the express purpose of disposing of the interest of said tenants in common, and an assignment of the interest of said parties is made to said agent, in trust, in order to enable him to make an advantageous sale, then the law raises a trust relationship between such parties and such agent, and enjoins upon him the duty to act toward such parties, whose interests he holds in trust, with the utmost honesty and good faith.
It is a maxim of equity that the law will not take rights acquired by one who has been vigilant and give the benefit thereof to one who has lost by reason of nonaction.
Appeal from Superior Court, Tulsa County; M. A. Breckenridge, Judge.
Action by Max Madansky against O. N. West. Judgment for plaintiff and both parties appeal. Modified and rendered.
p>Page & Dillard, of Tulsa, for plaintiff in error.
Davidson & Williams, of Tulsa, for defendant in error.
This was an action to cancel an assignment of an oil and gas lease, or rather an assignment of a one-eighth interest in a certain lease, the grounds being that the assignment was obtained through fraud.
Max Madansky, plaintiff below, owned a one-eighth interest in an oil and gas lease on a certain tract of land in Tulsa county viz. the S.W. 1/4 of section 36, township 18 north, range 12 east. There were seven other parties, each of whom owned a one-eighth interest in said lease, among whom was O. N. West defendant below, who, volunteering to act for all the interest holders, represented to Madansky that the lease could be disposed of to a better advantage and for a better price by selling it all together; that if each of the interest owners would assign their one-eighth interest to him and place such assignment in escrow in a bank, he would find a buyer, and would assign the entire interest to such buyer. He further represented to Madansky that all the other interest owners were willing to make such an assignment to him, and would do so, and that when he found a buyer he would assign his interest, together with the interest of the other seven, to such buyer. He made several visits to Madansky for the purpose of obtaining Madansky's assignment, and of inducing Madansky to make the assignment, and in the course of such visits and in the course of the several conversations between him and Madansky he referred especially to certain wells that were being drilled some distance from their lease, and to the fact that one of said wells was only an 80-barrel well, and the other comparatively a dry hole, and that therefore their lease was not valuable, and that he would be unable to get a good price for it, and upon such representations as to the depreciated value of the lease, and upon the representations that he and all the other parties were going to put in their interest and assign them all together, and thereby get a better price than by selling singly, Madansky was induced to and did assign his one-eighth interest to West, upon condition that if West found a purchaser for the entire lease, he (Madansky) should receive not less than $400 for his interest. Upon such understanding and agreement, Madansky made an assignment of his interest to West, and West placed same in escrow in a bank, with authority to assign same to a purchaser who was willing to pay not less than $400 for Madansky's interest.
Within a few days thereafter West made a sale of six of the one-eighth interests in said lease to J. R. and C. C. Cole, and thereafter Madansky received $400 for his one-eighth interest. It developed later that West received $4,000 and an agreement to drill a well on the land, in consideration for the interests he transferred to the Coles. It developed also that West had not transferred the entire interest in the lease to the Coles, as he had led Madansky to believe he would do, but had transferred only six of the one-eighth interests, and had not transferred his own interest, nor the interest of one Phillips, who had not gone into the agreement, and at this time had not assigned his interest to West. It also developed that a well, known as the Boesche well, had been brought in with a daily production of 800 barrels, that said well was only a quarter of a mile and 200 feet from the line of the lease in question, that West had never reported to Madansky or said anything to Madansky about the Boesche well, but he had emphasized to Madansky the fact of the other two wells, one being only an 80-barrel well and the other comparatively a dry hole, both of which were some distance further away than the Boesche well.
The assignment from Madansky to West was made on the 26th day of April, the Boesche well was brought in on the 29th day of April, and about the 3d or 4th day of May West made a sale to the Coles of six of the one-eighth interests, as above stated, receiving in consideration therefor $4,000. Upon learning these facts, Madansky brought suit against West for the cancellation of the assignment which he had made to West. The suit was filed August 5, 1916. In the meantime a well had been brought in on the lease in question, daily production about 400 barrels, at the time suit was brought, and something over 200 barrels at the time the case was tried in January, 1917.
The cause was submitted to the court, and judgment rendered in favor of the plaintiff, Madansky. The court held that there was sufficient evidence of fraud to warrant the cancellation of the assignments, but concluded that as Madansky's interest had been assigned by West to the Coles, and subsequently by the Coles to the corporation, known as Cole, Rudd & West, the identity of West's interest had become lost and merged in the corporation, and that the cancellation of the assignment would not afford the relief to which Madansky was entitled. But as West had assigned his one-eighth interest in the lease to the corporation, taking in consideration therefor a certain number of shares of capital stock, the court rendered judgment in favor of Madansky for the capital stock owned by West in the corporation, not, however, for the full amount of what Madansky's one-eighth interest bore to the capital stock owned by West, but, taking the view that each of the five other owners of a one-eighth interest had likewise been defrauded and that each was entitled to his proportionate share, if he should bring suit against West, rendered judgment, decreeing Madansky only a one-sixth interest in the capital stock owned by West, reserving the other five-sixths interest for the other five leaseholders, in case they should see fit to bring suit.
From the judgment rendered, West appealed to this court, contending that the court erred in rendering judgment in favor of Madansky for any amount, also contending that Madansky's remedy was by an action for damages for deceit against defendant, and by garnishment against the corporation after suit for damages was filed.
Madansky appealed also, and filed cross-petition in error, contending that the court erred in holding back any of West's stock for the five other interest holders who were not parties to the suit, nor claimed any interest in the judgment, and that as Madansky had shown himself entitled to judgment he was entitled to judgment for such portion of West's capital stock as West had received for a one-eighth interest in the lease, instead of judgment for only a one-sixth portion of same.
The first proposition argued by West is that Madansky alleged two distinct and inconsistent causes of action, and that the court erred in overruling his motion to require Madansky to elect as to which cause of action he relied upon. If in fact there were two distinct causes of action, inconsistent with each other, then the proper proceeding would have been by demurrer on the ground of misjoinder, and not by motion to elect. See Rev. Laws 1910, §§ 4740-4742. Also C., O. & G R. Co. v. Burgess, 21 Okl. 653, 97 P. 271, wherein it was held that misjoinder of causes of action should be raised by demurrer, and also Oates v. Freeman, 57 Okl. 449, 157 P. 74, wherein it is held that misjoinder of causes of action is properly attacked by demurrer, and not by...
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