*1 (K) Other witnesses testified that It is evi- true that there is no direct Barney had stated them that he and dence in extent the record to the Jay buying were partnership property the ranch in Okla- interest by homa. owned each of the brothers. Under presum- our statute the interest was It will be noted that when this case ably co-equal partner is en- each finally tried, lips of both Bar- proceeds titled to share in the ney Jay by had been sealed death. partnership on that basis. 54 compelled The court was determine O.S. 5.§ the issues from the strands of available evidence. When picture presented these strands are knit- From the over-all together they strong rope ted form a I am of evidently and the court considered the of the trial court should picture just over-all and not my individual opinion, not disturbed. In circumstances. sufficiently supported is and is in accord with the evidence. reversing my the case associates respectfully therefore dissent. po- have substituted themselves in the judge. sition of the trial trial amI GIBSON, authorized to state that opportunity the witnesses, J„ saw C.J., HURST, had the V.C.J., OSBORN, their observe demeanor on wit- concur in this dissent. opportunity ness stand. He had the determine their interest or lack of in- terest and to determine which witnesses believe, and which ones not to be- My lieve. associates have not had this GREEN v. MEE. my privilege and, opinion, they are saying in error July 3, No. 31783. 1945. supported trial is court not Rehearing Sept. 10, sufficient evidence to Denied 1946. meet the test for proving partnership resulting Application for Leave to File Second trust. Rehearing Petition Denied Oct. 1946. opinion, least innuendo, states J. G. Ward was 173 P. 217. 2d guilty of laches in that the deed con- veying title the names of B. E. Ward immediately and Blanche Ward was re- corded in 1929 and that thereafter years ten until his death he and Blanche exclusively occupied Ward the home ranch, holding out themselves as sole owners thereof. record discloses that B. E. and Blanche Ward lived in Texarkana 1929 until when they moved to the Marietta ranch. Blanche Ward so testified. forming partnership The brothers question they good traders; were both closely associated; Jay depended were honesty Barney’s Barney de- pended Jay’s integrity. They han- partnership affairs, dled their not men, astute business but as brothers not-possessed who were busi- ness acumen of a banker. acquaintance contacted an *2 his,- Harvey Lee, one and made an agreement whereby inspect Lee was to appraise property, the for which paid service Lee was to be the sum of $50 record $100. is not clear as to which of the two mentioned sums Lee Rittenhouse, Webster, Hanson & Rit- was to receive and it is also indefinite as
tenhouse,
City,
plaintiff
of Oklahoma
for
to which of said sums he did in fact re-
in error.
ceive.
Mee,
City,
John W.
of Oklahoma
just
The record is not clear as to
what
defendant
in error.
happened
ap-
out,
next. Lee either went
praised
land,
the
and returned to
DAVISON,
presented
J. This cause is
report
to
his
value,
determination
its
appeal
from the district
court of Okla-
or he located the owner
county.
of the land and
homa
was instituted in that
made a deal with him for a
commission
17, 1939,
court on November
Tom L.
report.
and then returned
to
to
against
plaintiff,
Mee,
Clara
appear
Lee died in
did not
as a
plaintiff,
defendant.
Tom L.
witness
in this case. We are
Green, sought
judgment
therefore
to set aside a
testimony.
without
the benefit of his
and decree of foreclosure
entered
upon
ground
cause No. 75384
light
upon
Some
is cast
the doubtful
therein was obtained
point
preceding para-
mentioned
fraud;
the transaction wherein the
graph by
of Mr.
mortgage
securing
pay-
*3
judgment
due
and the balance
on the
Finley
plice.
that
Lee advised
that
at
against
deficiency judgment
became a
purchase
$20,-
of the land was
the
defendant,
A few
Green.
the
Tom L.
Finley then
Tom L. Green
000.
advised
day
November,
days
of
before the 17th
$20,000
that
the
of the land was
1939,
that
Tom L. Green discovered
it was worth that
amount.
a commission
Lee had received
agreed
purchase
Green
to
the land for
$1,500
the husband
of
from Robert
the sum stated and authorized
here-
of
defendant
Clara
to act for him in the matter.
this action to va-
in. He then instituted
3, 1931,
On March
Mr.
and Mr.
mortgage
fore-
cate and set aside the
Robert
met at the
Mee
office of Mee. A
judgment
in cause No. 75384.
closure
purchase
contract
for the
of the land
proceeding
under
the fourth
He was
signed
The
was drafted.
contract was
in
1031
subdivision of
conformity
O. S.
§
husband,
for Clara Mee
Robert
procedural
require-
with the
Mee, and for Tom L. Green
R. E. L. ments of 12
S. 1941
O.
§ 103.3.
Finley.
contract,
In the
at the insistence
incorporated
there
of Mr.
was
presenting
review
this cause
following
the
sentence: “All commission
Green,
plaintiff
plaintiff, Tom L.
as
the
paid
to be
Robert Mee.”
error, asserts
that “where evidence
in
conclusively
purchased
that
of
Thereafter Tom L. Green
establishes
appraise
prop-
buyer
paid $5,000
the
$20,000.
land for
He
the
selected to
the
buyer
erty
promissory
the value
cash and
executed
three
advise
paid
advisability
purchasing
remaining
a
$15,000.
of
is
notes for the
He also
$1,500 by
mortgage
the seller
executed a
on the land to se-
commission of
buyer’s agent
sale,
payment
procure
cure
to induce
of the notes. The first
promissory
fraud on
of
notes to mature
fell
such conduct constitutes
paid.
3,
part
due on March
It was not
the seller sufficient
to vitiate
1932.
of
Clara Mee then instituted
an action
transaction.”
(case
75384)
No.
to foreclose the mort-
proposition plaintiff
Under
the above
gage setting up
unpaid
as due and
as a
shows
asserts: “The record
whole
mortgage
$15,-
entire
debt in the sum of
beyond
think,
doubt,
fraud,
we
000.
plaintiff
under
error
that
the law
Green,
Tom
as defendant
cause
entire transaction
is entitled to have the
75384,
an
No.
filed
answer and counter-
set aside.”
asserting damages
claim
in the sum of
$19,250.
January
the evi-
10, 1933,
as a whole we think
the cause
Viewed
(No.
75384)
Lee re-
The
dence
shows
tried.
result was
plaintiff
Rob-
a
a commission of
for the
in the sum ceived
However,
$16,746, together
attorney’s
think that
of
we do not
with an
ert Mee.
conclusively
part
that
fee in the
shows
sum of
taxed as a
the evidence
paid by
directing
of the
Robert
costs and a decree
a sale
such commission
ap-
agreed upon
mortgaged
land,
Lee had com-
of
without
performed
satisfy
mortgage
pletely
praisement,
services
debt.
appraised
is,
plaintiff
plaintiff,
that
before he had
The
error,
also
urges
and advised
as to
that:
of
thereof.
value
previously quoted
“Where trial court renders
in this
indi-
purely equitable cognizance
in a case of
completed
his services in
cates that
plaintiff,
in favor of the
and without
advising
appraising
filing
of a motion for new trial
through Finley before he ever
Green
hearing
defendant orders further
contacted Mee.
request
defendant,
and thereafter
renders
for defendant on fur-
record
does not disclose
that
ther evidence from
one
defendant’s
plaintiff
knew
Lee.
record
witnesses,
and consider
render
Supreme
weigh
Court will
plaintiff
disclose, however,
does
evidence,
the entire
personal
relationship
no
business
had
in connection with the trans-
with Lee
should have entered.”
transaction
and that all of the
action
.
proposition
This
is based
through
plaintiff’s part
carried on
-
conception
August
record. On
agent, Finley,
and with no other
the trial
wrote
plaintiff
solely
a letter
person,
relied
attorneys
respective
parties
for the
Finley.
acts
announcing his intention to decide the
jurisdiction
well
in this
is
settled
plaintiff
cause
requesting
for the
par-
acts
both
where
parties
prepare
journal
and submit a
making
requiring
a contract
ties
entry to that effect. The record does not
discretion,
is
exercise of
contract
sitting
judge,
reflect
the trial
*4
contrary
public policy
and voidable
court,
judgment.
ever rendered
such a
application
equity
of either
in
merely
announcing
He
wrote a letter
Mfg. Co.,
party. Brockman v. Delta
way
the cause would be decided.
968;
357, 87 P. 2d
Home Under-
Okla.
After
this letter was written the cause
Inc.,
Building
takers,
&
Bristow
Loan
v.
reopened
hearing
for further
Association,
208,
259;
42 P. 2d
171 Okla.
hearing
at the
testimony,
second
further
Realty
Spencer, 21
Hunter
Co. v.
Okla.
by deposition, of Elizabeth Adams was
Hyland
757; see, also,
155,
Mil-
95 P.
v.
produced.
deposition
In this
she stated
(9th Cir.)
Ins. Co.
91 F. 2d
lers National
acquainted
that she was well
with Mr.
735; Pan American
Petroleum and
Finley
Harvey
Lee was her
Transport
of Amer-
Co. v. United States
personally
brother. That she
knew of
734,
ica,
Ed.
273 U. S.
real
estate
transaction
involved
Findlay
(6th Cir.)
City
et
of
v. Pertz
al.
herein and that
the deal was discussed
judgment. v. Mr. who 2d 939. Cer- 184, 26 P. Treas., 166 Okla. testimony Green. With that in the rec- signature the trial tainly of journal ord and the requesting facts therein disclosed that a letter on a possible ato of it is not entry prepared not amount does justify Harvey the conclusion that judgment. Lee first contacted Mee he had after case, are in this we the record Under reported price and his recommenda- opinion that Finley. tion to Green and affirmed. should be trial court When to Green V.C.J., C.J., HURST, GIBSON, per that was $500 OSBORN, JJ., BAY- concur. RILEY and acre, $20,000, or he must have obtained LESS, J., in conclusion. WELCH concurs that information theretofore some JJ., CORN, dissent. and. manner. The record shows he obtained previous that information from his in- Rehearing. terview with Mee. is doubtful that (dissenting). ma- WELCH, J. he could have obtained that information opinion jority be sustained cannot anyone otherwise else. The By majori- as I the record view it. possibility record discloses no that he ty opinion is affirmed could have There- obtained it otherwise. ground that the record shows the sole fore, it follows his conference with employed Lee was report Mee occurred before he made his inspect and re- Green to to Green and port value and and recommend as to its employment by Green could have been inspection report- he made his terminated. complet- recommendation, thus ed ing employment before he con- discloses priced $18,000 owner, and was em- Mee first the land at tacted him, ployed by promote net cash to and that he then the sale raised agreeing $20,000, commission. Lee the commission and it, as I view discloses Lee advised and Green as .that beyond question that the acts and trans- to the latter recom- chronological in this actions occurred mended *5 the land to be worth employed Lee was first order: surely majority opin- Then amount. inspected He then the land Green. majority sup- ion or cannot be view the own- and ascertained ported in the conclusion that obtained contacted Mee and er. He then reported Lee did could or have net. He told Mee $20,000 price before his conference pay a com- client would not that his employment Mee. priced then Mee mission and Therefore, respectfully agreeing $20,000, dissent Harvey Lee the conclusion which seems to me to Thereafter commission. refuted be by to Green language $20,000, per acre, $500 worth that itself. fair and the land notes who, plain- witness chief for the ment thereof were obtained was based tiff, testified as follows: plaintiff fraud in that in cause 75384, through No. and hus- “Q. you pay Did Yes, him the A. $50? band, Mee, Robert had induced supposedly sir. He went out and looked falsely ap- of Tom Green to L. the land over and back to us days about praise two the land land in the was worth value of described money. He wanted to know who the mortgage thereby and to and otherwise owner was and what he would take for purchase Tom induce the of said Q. it. Who was the owner? A. Robert paying Green to the of Tom Q. price they Mee. What was $1,500. L. Green the sum of Q. did wanted? A. an acre. What $500 say he with reference to this as a fair This cause was tried to the court and reasonable cash value? A. He jury. aid of a At the without con- thought Did Q. money. it was worth that cause en- clusion you rely upon and Mr. Green defendant, tered its appraisal I boy property? Yes, sir, of that A. did, thought my Clara I told Mee. Mr. Green responsible and told him he early part plaintiff thought In the of 1931 the it said he was worth money.” driving E. L. were one R. City they when northwest of Oklahoma quoted The answer first above indi- sign indicating saw a that a tract of completed appraisal that Lee cates They stopped land was for sale. property of the he became aware property. Green indi- looked over property of who owned and what disposition purchase cated his asking the same. the owner price correspond if the should words, appear it that Lee other would to the reasonable market of the value completed before he his work for Green development purposes. land for Green then contacted Robert who was requested procure ap- the owner of the land. believed praisement competent party from some qualified time Lee contacted about the same to ascertain the value At. Mee, the husband of Clara Mee. land. Robert appeal to this inquired price Notice intention which Mr. Lee given additional time in- court was proposed the land. He was to sell was al- proposed and serve a case-made sale was make formed per- appeal But no was ever cash, Lee then left lowed. net to Mee. in cause No. fected and the office, returned in a few mo- Mee’s but inquire Mee would 75384 became final. ments to what pay com- the land for and a broker’s sell mortgaged August 25, 1933, the Mee decided mission. Mr. plaintiff Clara land was sold. paid $20,000 if he a commis- would be in cause No. creditor sion, and the sale was not a full cash purchaser, tier bid 75384 was agreed He then transaction. purchase price was credited $8,000. The procure purchaser if Lee should