Hilliard v. Douglas Oil Fields

Scott, Justice. This action was commenced in the district court of Converse County by the defendant in error as plaintiff and who will be referred to in this opinion as plaintiff, against the plaintiff in error as defendant and who will hereinafter be .referred to as defendant, upon two alleged causes of action upon separate accounts. The first cause of action is for an alleged indebtedness of $1,538.72 on an account for work, labor and services performed and expenditures made in and about the business of and at the request of defendant between August 16, 1904, and July 30, 1906. The second cause of action is for money alleged to have been paid out at different times for and on behalf of defendant and upon his request between January 1, 1905, and December 1, 1908. It is alleged that a copy of each account marked respectively exhibits “A” and “B” is attached to and made a part of 'the petition. Exhibit “A” upon which the first cause of action is based is entitled “Robert O. Hilliard, Dr., to Douglas Oil — 210 — Fields” then follows the items of account which aggregate $5,385.51, and then the following: “2-7 (Hilliard’s share) equals $1,538.72.” Exhibit “B” which is the basis of the second cause of action is entitled-“Robert O. Hilliard, Dr., to Douglas Oil Fields” then follows the items aggregating $3,185.58, and then the following: “3-8 (Hilliard’s share) equals $1,194.59.” , The answer is a general denial. The case was tried without the intervention of a jury and the court after argument and submission took the case under advisement. The journal entry recites: “That the defendant having requested the court to separately state its findings of fact and its conclusions of law herein does say and find as follows, to-wit: “The above case having heretofore in obedience to the order of this court of May 13, 1910, been set down for-trial on September 6, 1910, and having been continued until September 9, 1910, and the same having been proceeded with on the last named date by the consent of counsel the case having been adjourned to Cheyenne for the introduction of further testimony and final argument to be had at such time as the business of the court would permit, and the business of the court now permitting it to be heard, come now the above named parties on this 30th day of December, 1910, by their respective attorneys, and the case is proceeded with by the introduction of evidence until the conclusion of the same, and thereupon the same is argued to the court, and the court being duly advised in the premises and the defendant having requested the court to separately state its findings of fact and its conclusions of law herein does say and find as follows, to-wit: I. FINDINGS OF FACT. 1. That by reason of the matters and things set forth in the first cause of action of plaintiff’s petition herein, the defendant on July 30, 1906, became indebted to the plaintiff for the items and in the amounts set forth in said first cause of action and more particularly specified in Exhibit A at — 211 — tached to and made a part of said petition not in the sum of $1,538.72, b'ut in the sum of $1,387.29, for services and expenditures made by the plaintiff on behalf of the defendant; that no part of said amount has been paid by said defendant or by anyone on his behalf; and that the interest on said sun? from August 30, 1906, to the present time is $480.93. •2. That by reason of the matters and things set forth in the second cause of action in plaintiff’s petition herein the defendant on November 8, 1908, became indebted to the plaintiff for the item's and in the amounts set forth in said' second cause of action and more particularly specified in Exhibit B, attached to and made a part of said petition, as the same were corrected on the trial of the case in the sun? of $1,061.86; that no part of said sum has been paid said plaintiff by said defendant or by anyone on his behalf; and' that the interest on said sum from December 8, 1908, to the present time amounts to the sum of $174.61. II. CONCLUSIONS OR LAW. And as conclusions of law this court does say and find as; follows, to-wit: 1. That under the first cause of action as set forth in-plaintiff’s petition there is now due from the defendant to. the plaintiff the sum of $1,387.29 as principal and $480.93 as interest amounting in all to the sum of $1,868.22; and that the plaintiff is entitled to recover said sum from the defendant and to have judgment and execution therefor. 2. That under the second cause of. action set forth in plaintiff’s petition herein there is now due the plaintiff from the defendant the sum of $1,061.86 as principal and $175.61 as interest, amounting in all to the sum of $1,236.47; and that the plaintiff is entitled to recover from the defendant said sum and to have judgment and execution therefor. 3. That the plaintiff is entitled to recover from the defendant its costs herein and to have judgment and executions therefor.” — 212 — Judgment was rendered accordingly and the journal entry proceeds as follows: “To all of which findings of fact, conclusions of law, judgment and order the defendant does now and here except.” A motion for a new trial was made and presented to the court which overruled the same and the defendant brings error. 1. It is assigned as error that the court refused to make and state separately its findings of fact and conclusions of law in accordance with section 4515, Comp. Stat., as requested by the defendant. The findings of fact and conclusions of law hereinbefore set out are in our judgment sufficient to constitute a general finding in favor of the plaintiff and'against the defendant. We are also of the opinion that as a special finding of fact within the provision of section 4515, supra, they are each imperfect'and insufficient. It appears that the trial court intended them as special findings and responsive to the request. The exception .can not be here considered, for it does not appear that it was based upon the ground of imperfection or insufficiency of a special finding of fact. The exception is as follows: “To all of which findings of fact, conclusions of law, judgment and order the defendant does now and here except.” There is no suggestion that they were imperfect or insufficient to comply with the request for special findings in the exception, or in the motion for a new trial; and in the assignment of errors here made the only assignment in this respect is that the court erred in refusing to make separate findings of fact as requested by plaintiff. The findings are also attacked in the motion for a-new trial and on other assignments on the grounds that they are not sustained by sufficient evidence, or any evidence, and that the conclusions of law are not supported by any finding of fact. In Levi v. Daniels, 22 O. St. 38, 44, there was a finding of fact madé in response to a request for special findings and the court sáy: “If the finding of the court was faulty, in being too general — 213 — and comprehensive, and not responding to the specific questions of fact on which questions we express no opinion now —it is enough to say that the plaintiff in error did not except to the finding on that account, and that he is not prejudiced thereby, as the testimony which he himself has furnished in his bill of exceptions, gives the facts in detail, and may well be substituted for a more formal and specific finding of the court.” In that case the exception was as follows: “And the defendant excepts to the aforesaid conclusions of fact, for that the same are contrary to the law and to the evidence.” In the case before us the ground of the exception when made was not stated to the court. The court’s attention was not called to the imperfection in the finding, nor did the exception specify wherein the finding was not sufficiently specific. (8 Ency. PI. & Pr. 276, and cases in the foot note.) Had that been done the court would have been given an opportunity to have made any correction had it been deemed necessary. Having failed to specify the incompleteness or imperfection in the finding, or filed a motion or objection requesting more specific findings, thus giving the trial court an opportunity to make the correction loses to the defendant the right to have that paricular objection here reviewed. If, however, the proper exception had been made still the judgment should not be reversed if it appears from the record that such failure or refusal to make special findings of fact was not prejudicial error. It is said in 38 Cyc., at page 1953 as follows: “The making of findings of fact and conclusions of law is for the protection of both court and parties, the purpose of such findings and conclusions being: to dispose of the issues raised by the pleadings, and to make the case easily revi'ewable by exhibiting the exact grounds upon which the judgment rests.” It simplifies the matter of appeal upon the question as to whether upon a given state of facts, or special findings of fact the law has been correctly applied. Had the defendant desired to do so he could have brought that question here for determination without a — 214 — •transcript of the evidence incorporated in the bill. He has done more than that, and by other assignments to the effect that neither of the several findings of fact nor the judgment is supported by sufficient evidence asks an examination of all the evidence given upon the trial and which evidence is •incorporated in the bill and here returned as a part of the record for the purposes of a review of these assignments. That being so, the entire evidence is before this court for •examination to ascertain if the error complained of was prejudicial. Section 4515, supra, was adopted in 1886, together with other provisions from the Civil Code of Ohio, ■and the views herein expressed accord with the construction placed thereon by the Supreme Court of. Ohio, prior to its •adoption in Wyoming. If we adhere to the rule heretofore •recognized by this court then we adopted the statute with the judicial construction resting upon it by the court of the state from which it was adopted at the time of its adoption. (Crumrine v. Reynolds, 13 Wyo. in, 78 Pac. 402.) In 'Oliver v. Moore, 23 Ohio St. 473, upon request the court stated its conclusions of fact and law separately. A motion for a new trial was made upon the ground, among others, that the findings of fact were against and contrary to the evidence.' The motion was overruled, and plaintiff excepted, and by bill of exceptions placed all the testimony in the case upon the record. It was held that the trial court erred in 'its special finding and the court say: "The judgment, however, should not be reversed on account of the error in this •■special finding, unless the plaintiff was prejudiced thereby. In order to ascertain whether there was such prejudice, we must look into the whole record to see whether the same judgment should have been rendered notwithstanding the intervention of this error.” In Oxford Tp. v. Columbia, 38 Ohio St. 87, 94, a statement of separate conclusion of facts and of- law was requested but were not separately stated. The court, after quoting section 5205, R: S. O., which is identical with our section 4515, supra, say: “This provision is one of much importance, and it is in no sense directory. — 215 — That there is no proper compliance with the request is admitted; and it is clear to us that the action of the court in that respect affords ground of reversal^ unless it is shown that the plaintiffs were not prejudiced thereby. But we are of the opinion that it is shown that there was no such prejudice as to call for a reversal on that ground. The record contains all the testimony offered on the trial, and objection is made that the judgment below is opposed to the weight of the evidence. In deciding the case, therefore, w.e necessarily ascertain the facts.” It is provided by section 5109, Comp. Stat., that “A judgment rendered or final order made by the district court, may be reversed, vacated or modified by the Supreme Court, for errors appearing upon the record.” The bill of exceptions, containing all of the evidence given upon the trial, is a part of the record' in the case before us. We are not limited to a consideration of a part of the record but may consider such parts of the record as are germane to a disposal of any assignment of error. If an error appear upon the record a reversal will not necessarily follow unless the error be prejudicial. It is provided by section 4599, Comp. Stat., that “No exception shall be regarded unless it is material, and prejudicial to the substantial rights of the party excepting.” To sustain the contention of the defendant in error upon this record would, we think, repudiate the construction placed upon the statute by the Supreme Court of Ohio prior to its adoption in this jurisdiction and would overturn and render nugatory section 4599, which makes no distinction but is applicable to all cases. The review must be upon the record here presented, and if that record shows nothing more than error without prejudice this court should not reverse the judgment. 2. Upon the trial the plaintiff was permitted over objection that the action was in assumpsit and that it had not been pleaded to introduce a written contract, dated August 16, 1904, between the parties in support of the first cause of action and also over a like objection a contract dated October 31, 1904, in support of the second cause of action. These — 216 — contracts are voluminous and it is unnecessary to set them out in full. By the first contract, among other things, it was agreed that the parties were joint owners of certain oil claims in the proportion of 2-7 to Hilliard and 5-7 to the company. That the title should vest in and be held by the company for the purpose of organizing a corporation to take over the land, ánd if successful that 2-7 of the proceeds of such sale should be paid to Hilliard and 5-7 should be retained by the company. If at the end of two years the company had been unsuccessful in the venture the interest of Hilliard should be deeded back to him, and that he would pay 2-7 of all expenses of the venture. This was the basis of the liability upon the account .set forth in the first causé of action. In the second cause of action the account is founded upon the agreement of Hilliard in the contract dated October 31, 1904, to bear 1-3 of the costs and expenses of certain litigation involving the validity of a lease of certain oil lands and in which Hilliard owned a 1-3 interest and the company the other two-thirds. It is claimed that the items of account contained in exhibit “B” arise out of this agreement and form the basis of the second cause of action and that the contracts should have been pleaded. The proof is that both of these contracts, whether valid or invalid, and regardless of any other view that we may take of them, had terminated prior to the commencement of the action, the former by limitation and the latter by the termination of the litigation to which it had reference. Nothing remained to be done under the contracts except to compute the items of expenditures made under them and that being so the action upon account could be maintained without suing on the contracts. (1 Cyc., 474, 495-496; 1 Ency. Pl. & Pr., 90; City of Cincinnati v. Cameron, 33 O. St. 336; Bank of Columbia v. Patterson, 7 Cranch. 299, 3 L. Ed. 351; Schmidt v. Wambacker and Weil, 62 Ga. 321; Elm City Club v. Howes (Dec. 2, 1898), 92 Me. 211, 42 Atl. 392; Felton v. Dickinson, 10 Mass. 287; Talbottom R. Co. v. Gibbons (Dec. 17, 1890), 106 Ga. 229, 32 S. E. 151; Coney v. Home, (April — 217 — 30, 1894), 93 Ga. 723, 20 S. E. 213; Tumlin v. Bass Furnace Co. (March 19, 1894), 93 Ga. 594, 20 S. E. 44; Frontier Supply Co. v. Loveland, 15 Wyo. 313, 88 Pac. 651; Metcalf v. Gilbert (Wyo.) 116 Pac. 1017.) In Ingle v. Jones, 2 Wall. (69 U. S.) 1, 17 L. Ed. 762, the doctrine is clearly announced as follows: “While a special contract remains executory, the plaintiff must sue upon it. When it has been fully executed according to its terms and nothing remains to be done but the payment of the price, he may sue on the contract or in indebitatus assumpsit, and rely upon the common counts.” In Smith v. Wambacker and Weil, supra, a contract was introduced in evidence and it was claimed that this contract limited the recovery to certain things specified therein alone. The action was an action on an account, and the contention of the defendant that the action should have been on the contract was not sustained. In Frontier Supply Co. v. Loveland, supra, the petition, as in the case here, was in the short form under section 4406, Comp. Stat. 1910 (sec. 3560 R. S. 1899) upon an account for goods sold and delivered. This court said: “Conceding that there are special contracts as contended contemporaneous with and precedent to the sale, the right of election as to pleading the cause of action remained in the plaintiff.” In Metcalf v. Gilbert, supra, this court said: “It is settled law that where the contract has been fully performed by the plaintiff, and nothing remains to be done but the payment of the money by the defendant, it is not necessary to set out or declare upon the special contract, but the liability of the defendant may be enforced under a count for the reasonable value of the services. In such case the contract may be used as evidence, and the recovery can not exceed the amount thereby agreed upon; the only effect in such case of proof of an express contract as to price is that the stipulated price becomes the quantum meruitThe plaintiff having the right and having so pleaded the general denial contained in the answer put in issue the liability of the defendant. The authority to make the charge could be siis218 tained by no better proof than the contract itself if suf-Fcient for that purpose and otherwise admissible. The contracts being thus in the record, in so far as they are germane to the issue upon the alleged indebtedness sought to be recovered in this suit, they must be construed in determining whether the judgment is unsupported by the evidence and is contrary to law. 3. By the terms of the written agreement executed on August 16, 1904, between Hilliard and certain stockholders of the Douglas Oil Fields, it was decided to separate their interests by arbitration, which was had, the arbitrators’ report being dated October 31, 1904. By the terms of the contract, Hilliard owned two-sevenths of certain lands known and described as gas lands and the company owned five-sevenths either in fee or by lease, and which are described by schedule attached to the contract. By section 10 it was agreed in substance that the company should retain title to the gas lands and (1) sell them to some individual; or, (2) transfer them to a company to be organized; and (3) in either case, turn over to Hilliard two-sevenths of the purchase price. If, however, the lands were not sold or conveyed to a company within two years, that is, prior to August 16, 1906, then (1) if Hilliard so requested, the company should transfer to him a two-sevenths interest in the property itself; and (2) upon such conveyance to Hilliard at his request, and in such case only, Hilliard, should pay two-sevenths of the expenses incurred upon or in connection with the property after the date of the contract. The parties were bound by its terms, and acting upon and within the time stated in the contract, the Douglas Oil Fields organized a gas company and conveyed the gas lands to it. Under the express condition of their contract this relieved Hilliard from the payment of any expenditures made'after its date. Each of the items of the account sued upon in the first cause of action accrued, if at all, subsequent to August 16, 1904, the date of the contract, and upon the facts the contingency which would fix the liability upon the defendant to pay two219 sevenths or any part of them never occurred. We are therefore of the opinion that the judgment upon the first cause of action is not supported by the evidence and is for that reason contrary to law. 4. It is contended by the defendant that the right to recover upon the second cause of action is based upon an alleged contract dated October 31, 1904, signed by one Mc-Whinnie as agent for Hilliard. The authority of the agent to bind Hilliard thereto is disputed. The contract is in form a sub-lease of 120 acres described by legal sub-divisions included and which land constituted one-third of the acreage-covered -by the lease from Hamilton to one Phillips aiyl' which was theretofore assigned to the Douglas Oil Fields, and recites that Hamilton had commenced suit to cancel the lease and that the Douglas Oil Fields had also commenced' suit against Hamilton to enjoin him from interfering with the leased premises and that Hilliard should share and bear one-third of all costs and expenses entailed in the defense and prosecution of these actions. The items set out in the-account marked “Exhibit B,” annexed to the petition, are alleged expenditures in connection with this litigation. The land covered by the Hamilton lease aggregated 360 acres and was not involved in the matter of expenditures sought to be-recovered in the first cause of action. Owing to the difficulty in making and setting apart each one’s share in the proportion of two-sevenths to Hilliard and five-sevenths to the company, it was agreed by the contracts that Hilliard’s share should be 120 acres in accordance to the government-subdivisions or a tract equal to one-third of the acreage and accordingly the S. W. %. of the S. W. of Sec. 4 and the N. of the N. W. % of Sec. 9, Tp. 32 N. of R. 73 W. was set aside to Hilliard and the balance of the acreage to the-company. The lease by its terms was to expire on August 4, 1912, was executed on August 4, 1902, to J. Bevan Phillips, who as trustee, on December 14, 1903, assigned the-lease to Douglas Oil Fields and the latter, by the contract of October 31, 1904, sub-leased the above described 120 acres220 to the Wyoming Oil and Development Compnay, a corporation created through and by Hilliard’s instrumentality. It will be observed that title to all the land by virtue of and included in the Hamilton lease was involved in the suits with Hamilton at the time the arbitrators made their award. The interests of Hilliard and the Douglas Oil Fields in sustaining the lease were common. The arbitrators .attempted to sever such interests under the contract of August 16, 1904, which provided that Hilliard would take or claim or insist •only upon such title as the company had. The sub-lease or agreement of October 31, 1904, by its terms is a substitute for any other deed or instrument as showing Hilliard’s title and right under the Hamilton lease as ascertained by the arbitrators. It was the company’s title under the lease that was being assailed and which materially affected Hilliard’s interest therein and was in litigation at the time the award was made by the arbitrators. The acreage awarded to Hilliard constituted one-third of the acreage covered by the Hamilton lease. He and the company held title from a common source. Failure to maintain the company’s title to the land in the litigation would be equally fatal to Hilliard’s title. While he repudiates the contract, we think he must be charged with notice of the arbitrators’ action and the award to him of this land, and further,- whether McWhinnie was clothed with power to bind him to the contract of October 31, 1904, or not, that .such contract was admissible in evidence as showing a compliance with the arbitrators’ award, and in the absence of fraud or exception thereto he will be held to have accepted the fruits of such award. Having agreed to take such title only as the company had he took the title impressed with a law suit and we think was charged with notice that the title was being litigated.- Under such circumstances, Hilliard must be held equitably bound to pay his proper proportion of the expenditures of the plaintiff in .defending the lease, and the same are recoverable in this kind of actionand the evidence tending to show his knowledge that such expenditures were being made for his benefit — 221 — without objecting thereto, is sufficient, we think, to raise an implied promise on his part to reimburse the plaintiff therefor. AVe are therefore of the opinion that it is wholly immaterial whether McAVhinnie was empowered to bind Hil-liard as his agent in the execution of the contract of October 31, 1904, and that Hilliard’s liability is shown to exist independent thereof. 5. Objection was made to the following question propounded to Arthur AV. Phillips in his deposition, to-wit: “He (meaning McAVhinnie) always, in fact, led you to believe that he had absolute authority to represent and bind Mr. Hilliard in every way?” AVe need not discuss the question as to the competency of this evidence other than to say that if it be conceded to be incompetent it cannot change the result of this case in view of the conclusion reached as to-the extent to which the contract of October 1, 1904, was valid. 6. It was proven by plaintiff’s witnesses that the last item of $1,377.89 in Exhibit “B” charged November 1, 1908, for legal services in Hamilton cases has not been paid. The form of the action is for money paid to the use and benefit of the defendant. There is, therefore, a total failure of proof in so far as this item is concerned. In any view of this case on. the theory upon which it was presented and' tried in the lower court it was necessary in order to recover this item to prove that it had been paid. The action is in the nature of the common law action of assumpsit. (Cincinnati v. Cameron, 33 O. St. 336; Frontier Supply Co. v. Loveland et al., 15 Wyo. 313, 88 Pac. 651.) The mere incurring the liability or indebtedness without payment is not sufficient to sustain the action. (27 Cyc., 836, 837.) AVe are therefore of the opinion that’the judgment upon the first cause of action should for the reasons stated be reversed; and that the judgment upon the second cause of action' should also be reversed and vacated for the foregoing reasons unless the plaintiff shall, within 60' days after the mandate herein is filed in the District Court, remit all of — 222 — the judgment therein except the sum of $602.66 and legal interest thereon from December 8, 1908, to the date of the judgment; and upon the filing of such remittitur, the judgment for the reduced amount will be affirmed. The cause will be remanded for such further proceedings as may be proper not inconsistent with this opinion. Beard, C. J., and Potter, J., concur.