MCMURTRAY v. HAMILTON

MCMURTRAY v. HAMILTON
1942 OK 436
132 P.2d 335
191 Okla. 657
Case Number: 30498
Decided: 12/22/1942
Supreme Court of Oklahoma

McMURTRAY
v.
HAMILTON

Syllabus

¶0 1. APPEAL AND ERROR--Conclusiveness of findings in jury-waived case.
Where a Jury is waived in an action of legal cognizance, the findings of the court are entitled to the same weight and consideration that would be given to a verdict by a jury, and if there is any evidence, including any reasonable inferences, tending to support the findings, this court will not reverse for insufficient evidence. Oklahoma Natural Gas Co. v. Shirley, 190 Okla. 319, 123 P.2d 669.
2. SAME--Existence of partnership as question for trier of facts.
Where the evidence as to the existence or nonexistence of a partnership is disputed, determination thereof is for the trier of the facts.
3. PARTNERSHIP--Whether particular real estate is partnership property determined by evidence of intent of parties.
In determining whether particular real estate is partnership property or is individual property of the partners, effect should be given to the intent of the partners, and this intent may be disclosed either by their conduct or by their agreements, express or implied. Foster v. Wilkinson, 96 Okla. 110, 220 P. 325.
4. JOINT ADVENTURES--Evidence sustained judgment against defendant as co-owner of land for half amount expended by plaintiff in payment of purchase price.
Evidence that plaintiff expended a certain sum of his own money in payment of the purchase price of a tract of land bought for himself and another and that the latter has made no repayment of any portion of such purchase money is sufficient to support a judgment in favor of plaintiff for the amount which his co-owner should have paid and to impress a lien upon the interest of such co-owner in the land for the sum so expended.

Appeal from District Court, Garvin County; Marvin Shilling, Judge.

Action by H. M. Hamilton against R. A. McMurtray to recover money expended in purchasing of interest in land for defendant and to impress a lien upon the interest of defendant in the land. Plaintiff had judgment, and defendant appeals. Affirmed.

R. E. Bowling, of Pauls Valley, for plaintiff in error.
Marion Henderson, of Pauls Valley, for defendant in error.

PER CURIAM.

¶1 This action was instituted by the defendant in error, hereinafter referred to as plaintiff, against the plaintiff in error, hereinafter referred as as defendant, to recover the sum of $2,543.40 and to have a lien for said amount impressed upon the onehalf interest of the defendant in a certain tract of land which had been purchased by the parties on May 13, 1921.

¶2 The issues drawn by the pleadings of the respective parties were whether they were partners or joint adventurers in the transaction here involved, and if the latter, then what amount, if any, plaintiff was entitled to have charged against the interest of the defendant in the land involved.

¶3 The parties waived a jury and tried the cause to the court. The court made and filed written findings of fact and conclusions of law. The court found as a matter of fact that the parties had purchased the tract of land involved as joint adventurers and not as partners, and that plaintiff had expended the surn of $1,400 of his money in payment for said land, no part of which had been repaid him by the defendant, and concluded as a matter of law that plaintiff was entitled to maintain the action and to recover from the defendant onehalf of the sum of $1,400 expended by plaintiff in the acquisition of the land and to have a lien impressed upon the interest of the defendant in the land involved to secure the payment of said sum. Judgment followed the findings of fact so made and the conclusions of law so drawn. Motion for new trial was overruled, and defendant has perfected this appeal.

¶4 As grounds for reversal of the judgment the defendant contends, in substance, that the evidence discloses that he and plaintiff were partners in the transaction here involved, and hence the action was one which plaintiff could not maintain, and that if it does not, then that the evidence was insufficient to sustain a judgment in favor of the plaintiff for the amount allowed by the trial court.

¶5 The action being one of legal cognizance tried to the court without the intervention of a jury, the judgment of the court must be accorded the same consideration as the verdict of a properly instructed jury. Oklahoma Natural Gas Co. v. Shirley, 190 Okla. 319, 123 P.2d 669. We therefore first look to the evidence to ascertain whether the finding that the parties were not partners in the transaction here involved is reasonably sustained by competent evidence. We find that the evidence, while not as full and satisfactory as it might have been, tended to show that plaintiff and defendant had, commencing with the year 1915, engaged in a number of ventures of various kinds; that all of these transactions were carried out separately and distinct from the employment in which both were then engaged in a bank in Pauls Valley, and that in the ordinary course of events the parties would divide any profits which they obtained from any particular venture as soon as materialized; that the particular tract of land here involved was acquired by the parties about May 13, 1921, by an application of certain funds which they then had in a joint account and by the assumption of an existing mortgage indebtedness on the property; that plaintiff subsequently paid this mortgage indebtedness; that the parties had at least one other transaction of a similar nature wherein defendant here was plaintiff and the plaintiff here was defendant, and which was treated as a joint adventure, and that from the facts and circumstances shown in the instant case there was presented to the trial court a disputed question of fact as to whether the transaction here involved was a partnership one or otherwise. It is well settled that under such circumstances the determination of such issue is to be made by the trier of the facts. McCoy & Son v. First Nat. Bank of Cleveland, 123 Okla. 170, 252 P. 404; Cobb v. Martin, 32 Okla. 588, 123 P. 422; Foster v. Wilkinson, 96 Okla. 110, 220 P. 325.

¶6 We are of the opinion that, measured by the rule announced in the foregoing cases, the finding of the trial court that a partnership did not exist in the transaction here involved is supported by competent evidence.

¶7 This leaves for consideration the question of whether the evidence was sufficient to sustain the judgment in favor of the plaintiff for the amount found by the trial court. As hereinabove stated, the evidence showed that plaintiff had expended not less than $1,400 in payment of the mortgage indebtedness against the lands in question, and defendant admitted that he had never repaid the plaintiff any part of said sum. We therefore are of the opinion that the evidence clearly sustains the trial court in the recovery allowed plaintiff in this case. The defendant nowhere undertakes to show wherein the evidence is insufficient to sustain the judgment, but merely urges that since the evidence introduced was not as clear and convincing and as explicit as to details of the transaction as it might have been, therefore all of the evidence should be treated as of no value and disregarded. We are unable to agree with the contention so made. We are of the opinion that, taking the record as a whole, the evidence reasonably tends to support the findings of fact and conclusions of law of the trial court in every particular, and that the contentions advanced here by the defendant present no prejudicial error.

¶8 In view of the conclusion thus reached, the judgment should be and the same is hereby affirmed.

¶9 WELCH, C. J., CORN, V. C. J., and GIBSON, HURST, DAVISON, and ARNOLD, JJ., concur. OSBORN, J., not participating. RILEY and BAYLESS, JJ., absent.