GEORGE P. SMITH OIL CO. v. TRAVIS REFINING CO.

GEORGE P. SMITH OIL CO. v. TRAVIS REFINING CO.
1931 OK 410
1 P.2d 746
150 Okla. 279
Case Number: 19841
Decided: 07/07/1931
Supreme Court of Oklahoma

GEORGE P. SMITH OIL CO.
v.
TRAVIS REFINING CO.

Syllabus

¶0 1. Pleading--Motions to Quash Service and to Make More Definite and Certain Waived by Filing Answer.
Where defendant filed a motion to quash and motion to make more definite and certain, and before the court acts on said motions defendant files an answer by way of general denial, he thereby waives his motions to quash and make more definite and certain.
2. Same--Corporations--General Denial Insufficient to Raise Jurisdictional Questions.
A general denial is insufficient to raise the question of the right of plaintiff to maintain the action for the reason it is a foreign corporation or that the suit was not brought in the proper county as provided in section 202, C. O. S. 1921.
3. Appeal and Error--Review--Sufficiency of Evidence in Law Action Tried to Court.
A judgment rendered by a district court, in a law action, a jury having been waived, will not be reversed by this court where there is any competent evidence to support the same.

Appeal from District Court, Garvin County; W. G. Long, Judge.

Action by the Travis Refining Company against the George P. Smith Oil Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Bowling & Farmer, for plaintiff in error.
M. S. Robertson, Albert Rennie, and Yerker E. Taylor, for defendant in error.

CLARK, V. C. J.

¶1 This action was commenced in the district court of Garvin county by defendant in error against plaintiff in error. The parties will be referred to as they appeared in the trial court.

¶2 Plaintiff alleged that the defendant was indebted to it for goods, wares, and merchandise, sold and delivered to it, a balance due of $ 275.40, with 6 per cent. interest from September 1, 1926, and prayed for judgment for said amount. Itemized statement of debts and credits was set out in the petition. The petition was verified.

¶3 Motion to quash service and motion to make more definite and certain were filed, but no ruling thereon appears from the record to have been made, and the defendant filed answer by way of general and special denial.

¶4 A jury was waived and the cause was tried to the court. At the close of plaintiff's evidence, defendant filed demurrer on the grounds the same was insufficient in law to establish the claim, and that at most it showed a verbal agreement to answer for the debt incurred for Van Nest Oil Corporation, and such agreement was contrary to the statute of frauds and void; and, if such agreement was made, it was further contrary to law and void as it was ultra vires. Demurrer was overruled. Exception saved. Defendant rested. Judgment was rendered for plaintiff. Motion for new trial filed. Overruled. Defendant brings the cause here for review.

¶5 The plaintiff in error presents its assignments of error under two propositions:

"(1) The court had no jurisdiction to hear and determine the matter."

¶6 This contention is without merit, as the defendant submitted to the jurisdiction of the court by filing its answer by way of general denial, without acting on its motions. And a general denial was insufficient to raise the jurisdictional questions raised by plaintiff in error in its brief.

"(2) The court erred in overruling the demurrer of the defendant to the evidence of the plaintiff and not rendering judgment for defendant."

¶7 The evidence disclosed that one E. B. Van Nest was handling the business for George P. Smith Oil Company, plaintiff in error, and also for Van Nest Oil Corporation, in the purchase of supplies from the defendant in error; that he purchased goods from plaintiff for both companies; and that he was an officer in both companies; that the credit of the Van Nest Oil Corporation for fuel oil became bad; that the credit of George P. Smith Oil Company was good; that when plaintiff below informed Van Nest that they would not sell fuel oil to the Van Nest Oil Corporation on open account, Van Nest came back and advised plaintiff below that the George P. Smith Company would pay for the fuel oil; that the future account was charged on the books of plaintiff to George P. Smith Oil Company; that the account for the month of July was paid in full, both for fuel and accessories; that the August account was made out and sent the same as the other account. The accessories were paid by the George P. Smith Company, but, the fuel oil for which the suit is filed was not paid, that the other accessories purchased by Van Nest from plaintiff below and charged to the George P. Smith Company were paid for by the George P. Smith Company; that George P. Smith and Van Nest, in conversation with the contractor on well, advised the contractor to go ahead and start up, that they had made arrangements for fuel oil; that George P. Smith Oil Company had arranged for the oil, and that they were going to get the oil from the Travis Refining Company, plaintiff below.