Annotate this Case

1926 OK 632
248 P. 620
119 Okla. 82
Case Number: 16716
Decided: 07/20/1926
Supreme Court of Oklahoma



¶0 1. Parties--Defect of Parties Plaintiff--Waiver by Failure to Urge in Pleading. Where the question of a defect of parties plaintiff is not raised by demurrer or answer it is waived.
2. Appeal and Error--Questions of Fact--Law Action Tried to Court. Where, in a law action, there is competent evidence reasonably tending to sustain the finding of the trial court, and there was no error of law occurring at the trial, the judgment will be affirmed.

Ramsey, de Meules, Rosser & Martin, for plaintiff in error.
West, Gibson, Sherman, Davidson & Hull, for defendant in error.


¶1 In May, 1921, Lockwood and Miles, a copartnership, doing business under the firm name and style of the Oklahoma Petroleum Products Company, contracted to sell to the California By-Products Company 50 cars of gasoline of certain specifications. To fulfill this contract Lockwood and Miles in turn purchased from the Akin Gasoline Company a like amount of gasoline of like specifications. Thereafter all correspondence with reference to the shipments to the California By-Products Company was with the Mystic Gasoline Company which appears to have been in all respects the same as the California By-Products Company. The California By-Products Company, or the Mystic Company, in turn sold the gasoline to the Shell Company of California. The Mystic Company paid to Lockwood and Miles the purchase price claimed except $ 7,921.99. This suit was commenced by Lockwood against Hi-Power Gasoline Company to recover the balance of $ 7,921.99 alleged to be due from the California By-Products Company, or the Mystic Company. Lockwood, in his petition, alleged that the partnership of Lockwood and Miles had been dissolved, and that he, Lockwood, was the owner of all accounts due the partnership, including the account sued on; that the California By-Products Company had transferred all its business, assets, and liabilities to the Mystic Gasoline Company, a trust estate, and that the Mystic Gasoline Company was succeeded by the defendant, Hi-Power Gasoline Company, which assumed and agreed to pay all bills, accounts, and obligations of the Mystic Company, including the account sued on. The defendant, Hi-Power Gasoline Company, answered by general denial, and further alleged that the plaintiff was indebted to the Akin Gasoline Company in the sum of $ 6,124.13, balance due on the account above referred to, and that such account had been assigned by the Akin Gasoline Company to the defendant, Hi-Power Gasoline Company, and that amount was pleaded as a set-off.

¶2 The case was tried to the court and judgment was entered in favor of the plaintiff, Lockwood, against the defendant, Hi-Power Gasoline Company, in the sum of $ 2,792.76, being the amount sued for less the set-off pleaded by defendant. From that judgment the defendant, Hi-Power Gasoline Company, has appealed, and in its brief presents its several assignments of error under three general propositions. (1) Lockwood cannot recover in this action because there is an absolute failure of proof that he is the owner of the account sued upon. He cannot recover in his own name and in his own right upon an account due to the partnership. (2) There was no competent evidence that the Hi-Power Gasoline Company was liable to Lockwood for the balance due by the California By-Products Company. (3) Assuming, without admitting, that the Hi-Power Gasoline Company was liable to Lockwood for the balance due for the sale of the gasoline, the judgment was excessive.

¶3 1. The defendant waived the question of defect of parties plaintiff by not raising the question by demurrer or answer, as required by statute. One of the grounds of demurrer provided by section 268, C. S. 1921, is that there is defect of parties plaintiff or defendant. Section 270 provides:

"When the defects do not appear upon the face of the petition, the objection may be taken by answer; and if no objection be taken, either by demurrer or answer, the defendant shall be deemed to have waived the same, except only the objection to the jurisdiction of the court, and that the petition does not state facts sufficient to constitute a cause of action."