I cannot agree with the opinion of the majority of the court in reversing the judgment in this case. My conclusion is that the judgment should be affirmed. My reasons therefor follow:
The record discloses that the controversy grew out of substantially the following facts: That the plaintiff is now, and was at the times stated, the owner of 45-100 interest in the land described in the petition of the plaintiff with all the oil and gas royalties produced therefrom; that prior to his purchase of said land an oil and gas mining lease had been executed upon the same by the owner, one Attwood Powell, to Thos. B. Slick and B.B. Jones, and by various assignments the defendant. Slick Oil Company, acquired said oil lease and operated the same and obtained large quantities of oil therefrom. The controversy involved is over one-eighth royalty in the oil produced from the premises during the months of June, July, and August, 1915, for which settlement has not been made. The number of barrels thus run was 10,869.93, which, at the posted market price during these months, amounted to $5,105.67. There is no controversy between plaintiff and defendant as to the number of barrels of oil for which settlement has not been made during this period, the only controversy being as to the amount due, and there is no controversy that the amount stated is not a true and correct amount when calculated according to the posted market price; the only contention being, in effect, that during said periods of time and the succeeding months oil was bringing a premium over and above the posted market price, and that the plaintiff was entitled to receive compensation for his oil in accordance with the premium above the posted market price.
The record further discloses that during the month of September the number of barrels was 2,059.57, of the value of $1,615.57; for October the number of barrels was 2,816.62, of the value of $2,253.29; for November, 2,725.11 barrels, of the market value of $2,449.08; December, 1,730.77 barrels, of the market value of $1,830.82. The number of barrels produced during these months added to those produced during the months of June, July, and August gives a total of 20,201.46, being the exact amount for which plaintiff sues, and the total market price of $13,354.43, being the exact amount which defendant tendered the plaintiff and for which verdict and judgment was rendered in plaintiff's favor, and for which several amounts during these months the defendant had mailed its checks to the plaintiff in the usual course, and which checks were received and retained by plaintiff and were in the possession of his attorney or himself at the time of the trial. Of this there is no dispute in the evidence.
The lease contained the usual provision that the lessee should deliver to the lessor, his heirs or assigns, free of cost in the pipe line to which the party of the second part might connect the well or wells, the equal one-eighth part of the oil produced and saved from the leased premises. It is the contention of the defendant, as set out in its answer, that there was a waiver of that provision of the lease which provided for delivery of the royalty held to the credit of plaintiff in the pipe line, by an agreement *Page 63 between the parties; that performance thereof might be made in a different manner from that stated in the written lease. This was the sole issue submitted to the jury.
Evidence was offered to show that such an agreement had been entered into and had been performed by defendant paying to the plaintiff the posted market price of one-eighth of the oil produced, and that plaintiff had thus accepted performance without objection until oil began to command a premium over and above the posted market price, at which time the Plaintiff sought to withdraw from the arrangement. Upon this point the evidence is as follows:
Plaintiff testified on cross-examination:
"Q. You know from the first of June, 1915, up until the first day of January, 1916, that the Slick Oil Company was not delivering you the oil from day to day as it was being produced, did you not? A. They never did deliver me any from day to day; it is not now. Q. Isn't it a fact that they never did deliver you any oil from the first day of September, 1914, up until the first day of January, 1916? A. No, they didn't deliver me any oil. I didn't ask them to. Q. They paid you for the oil every month didn't they, up until the 1st day of September; when you got your check in September they had paid you for the oil produced every month? A. I don't know about every month; they sent me a check occassionally at what I understood to be the market price value of the oil at the time they sent it, and I accepted the check, now, if that is what you mean. Q. And you made no objection to the fact that they did not deliver you the oil until_____ A. Because they were paying me the full market price for the oil at that time, and I accepted it and supposed that was a contract of selling so many barrels."
The witness C.E. Hane testified on direct examination as follows:
"Q. Now, this cut oil that you speak about, what kind of oil is that? What do you mean by cut oil? A. Well it is oil that is cut by the action of a little water with a large amount of gas mixing with the oil. Q. Any mud in it? A. Sir? Q. Any mud in it? A. I presume there is some. Q. Sand? A. Sand. Q. Will pipe lines take or run oil of that kind? A. No, sir. Q. Now, when the pipe line disconnected from this well, what did you do with this oil? A. There was a pipe line laid from the Powell property to a tank farm southeast about two to three miles and the oil was run through that line to tanks of the Okla Oil Company. Q. Who laid that line? A. The Okla Oil Company. Q. For what purpose? A. To handle the oil from the Powell property. Q. To where? A. Steel tanks on the Blackwell farm. Q. Did the Okla Oil Company have any large amount of empty storage at that farm? A. Yes, sir. Q. When they started to taking the oil, did you have an arrangement with them about the oil? A. The Okla Oil Company as any interested party in the Slick Oil Company look it up with their associates in the Slick Oil Company. Q. What arrangement was made? A. The arrangement was made -Judge Devereux: I object to that. How is that binding upon us? Here is two companies that are so interlocked, you cannel tell which is which. Judge McClain: I am going to ask the witness Mr. Clark's knowledge of it just as soon as I can establish the fact there was anything lo show his knowledge. The Court' Overruled. Judge Devereux: Exception Put in 'incompetent, irrelevant and immaterial.' so as to assert the statutory ground. A. An agreement was made for the Slick Oil Company to handle the oil in that manner. Q. Was the Okla Oil Company to buy the oil? A. Yes, sir. Q. How was it to be accounted for? A. It was to be accounted for at the market price in effect on the date of runs after it had remained in steel tanks sufficiently long for the cut oil to settle to the bottom. Q. When was it to be paid for? Judge Devereux: I object to that; that cannot affect us, and it is incompetent, irrelevant and immaterial; how these interlocked companies were to pay each other certainly cannot affect the plaintiff in this case. Judge McCain: I am going to show by this witness that all of Mr. Clark's oil, all of it, was run here, and when it was to be paid for, and that we paid Mr. Clark for it, according to our agreement, and that the witness talked to Mr. Clark. The Court: Overruled. Judge Devereux: Exception. Q. When was the Okla to pay for the oil? A. When the oil had settled out; when the out oil had settled out in the tanks. Q. Then, as I understand you, the agreement was that the Okla Company would take the oil and pay for it at the market price on the day it was run into storage. A. Yes, sir. Q. But they would not pay for it until it was settled so they could determine the amount? A. Yes. sir. Q. Now, how was the market price to be determined? A. The market price to be determined? A. Yes. Judge Devereux: Just to save the record, I want to object to that, as incompetent, irrelevant and immaterial. The Court: Overruled. Judge Devereux: Exception. Q. What do you mean by the posted market price? A. The price posted by the Prairie Oil Gas Company. Q. I will ask you what is meant in the oil fields when yon speak of the posted market price of oil? What is the moaning of that expression among oil men? A. The posted price as paid by the Prairie and other purchasers of oil, at the price as posted by the Prairie Oil Gas Company. Q. Is the price that is posted by the Prairie Oil Gas Company invariably the prevailing price for oil? A. *Page 64 Yes, sir. Q. In the Mid-Continent field? A. Yes, sir. Q. Now, did you see Mr. Clark at any time along the latter part of May or the first of June? A. Yes, sir. Q. Now where did you see him? A. In the Slick Oil Company's office. Q. In Tulsa? A. In Tulsa. Q. Now, about how many time did you see him along about that time? A. Mr. Clark called frequently; I presume he was at the office six or a dozen times. Q. How long after this cut oil started to be produced on the premises would you say it was until you saw Mr. Clark? A. Ten days possibly. Q. Now, how long after this oil commenced to be run into the Okla storage for the Okla. Company was it, would you say, until you saw Mr. Clark, as near as you can remember? A. It must have been a few days. Q. Now, in addition to seeing him personally, did he telephone you? A. Yes, sir. Q. How frequently? A. I talked to Mr. Clark, or he, rather, called me hall a dozen times. Q. Now, the first time that you saw Mr. Clark after this oil begun to be run to the Okla storage, did you haw any conversation with him about what was being done with the oil and how it was being handled? A. Yes, sir. Q. Now, state to the jury the substance of your conversation, as near as you can recollect it? Judge Devereux: We object to that as incompetent, irrelevant and immaterial, because it is an attempt prove a sale of the oil in controversy without a writing and by parol in contravention of the statute of frauds, and because it is an attempt to vary a written contract by an unexecuted parol conversation. The Court: Overruled. Judge Devereux: Save an exception. A. Well, Mr. Clark called up the office to learn as to the approximate production and ask how it was being handled, and I explained it to him. Q. Did you tell him about the character of the oil? A. Yes, sir. Q. How did you explain it to him? Just tell the jury as near as you can remember the conversation you had with him, the substance of it, with Mr. Clark. Judge Devereux: Just to save the record I want to object as incompetent, irrelevant and immaterial, and for the reason set out in the objection to the last question. The Court: Overruled. Judge Devereux: Exception. A. He didn't at first understand why the oil should be cut; it was then explained to him what caused cut oil, the action of the water with the high-gas pressure, and we explained to him that possibly a half barrel of water would ruin two or three thousand barrels of oil. He then wanted to know how the oil was being handled, and we explained with reference to letting it run to the tank farm and that we had a number of empty steel tanks. Q. You say 'we': always speak of the company that you are talking about, as you are representing two companies. Judge Devereux: Of course, if he did talk to Clark, he is telling a conversation now, if he told Mr. Clark which company he was talking about. Judge McCain: He is giving the substance of it; he is not purporting to give the identical conversation. Judge Devereux: If he told Mr. Clark that he could tell, he meant such a company, Let him give the substance of it. Q. Tell what was said. A. It was explained to Mr. Clark that the Slick Company was — had arranged for the Okla to purchase and run the oil to the steel tanks on the Blackwell farm. Q. Now, was anything said to Mr. Clark about how this empty storage happened to be there? A. Yes, sir. Q. Now, what was told him about that. A. It was explained that there were a number of empty steel tanks, of 55,000 barrel capacity, on the Blackwell tank farm, and it was the intention for the Okla in the purchase of the cut oil from the Slick Company it would be settled when it had settled out and the cut oil had settled out, it would be run to these tanks. Q. Now, did you say anything to him about how the Okla was to pay for the oil? A. He asked the question how it was being paid for. Q. What did you tell him? A. At the market price as in effect on the date of the run and the payment to be made when the oil had settled out. Q. What did he say to that? A. He was very much pleased. Q. What did he say? Did he express himself in any way? A. He said it was very fortunate, he thought, that the Slick Oil Company had parties interested in the company that had their own steel tanks, and it was a happy coincidence that the empty tanks were there in which to store the oil."
The witness Frank Haskell testified, on direct examination, as follows: When the wells were drilled deeper that there was a maximum production of 20,000 barrels per day from three wells. Within less than a week after the first well was brought in they began lo produce what is known as cut oil, which is caused by water coming in under terrific gas pressure, thus making the oil unmarketable; some of the worst of it was settled in tanks on the farm and the balance was run into the steel tankage of the Okla Oil Company and permitted to settle. This process took from weeks to months, and the water and bad oil would settle to the bottom of the tank leaving the oil on top. This witness further testified:
"Q. Mr. Haskell, did you have a talk with Mr. Clark about this oil being pat in this Okla storage? A. After we had been doing that a short time, we did. Mr. Clark came in and was very much pleased, and so expressed himself, as to the way the matter was being handled; we were saving all the oil and other people who had at were wasting a lot of it. Q. About what time was that? A. Well, the only way I could establish that was to refer to the time we had this large production, and that was in — the largest along about the middle of *Page 65 May, and it continued large for some time; I would say it was in May and June, Mr. Clark was in our office at various times. Q. Now, in the conversation you had with Mr. Clark, about the oil, did he at any time express any dissatisfaction with the way you were handling his royalty interest in the oil? Judge Devereux: We object to that as incompetent, irrelevant and immaterial to any issue in this case, whether he was satisfied with the way they were handling it. The Court: I think you had better tell the way he said, what he said, or the substance of what was said, and then the jury can tell whether he was satisfied or not. Q. Say to the jury, give the substance of what he said on his visit or visits to you? A. Well, I can only give the tenor of it, and not the wording. We had, much to Mr. Clark's surprise, and our own, developed a very large production there and were taking care of it, when other productions of similar nature were being wasted. Judge Devereux: I move to strike that out, it is not in answer to any question. The Court: Tell what was said, the substance of it. Q. What was the substance of your conversation with Mr. Clark? A. He gave me to understand he was very much pleased with the way the matter was being handled and congratulated himself in having to deal with a company who was able to do it as well as we did."
The witness Hovis testified:
"Q. Do you know Mr. Clark? A. I do. Q. When did you first get acquainted with him? A. Well, I met Mr. Clark when he came into the office, the Slick Oil Company's office along about the spring of 1915, early in the spring. Q. Do you recall the period of time when the big wells on this property came in? A. Yes, sir. Q. Did You see Mr. Clark at that time or shortly after that time? A. I believe he was is in the office shortly after that time. Q. Who else was there besides Mr. Clark? A. I remember one occasion Mr. Hane was in there. Q. Did Mr. Clark and Mr. Hane have any conversation in your presence about the handling of the royalty oil from this property? A. Well, we were discussing the question about the disposition of the oil, and it was talked over — Q. Give the jury the substance of that conversation about the oil. A. Well, the substance of the conversation was that the oil was being run — the biggest bulk of it, at that time to the Okla Oil Company, and I remember that Mr. Clark asked upon what basis settlement would be made, and Mr. Hane said upon the basis of the price in effect at the date of the runs. Q. What did Mr. Clark say to that? Judge Devereux: We object to that, now, as being incompetent, irrelevant and immaterial, and because it is an attempt to change a contract by parol, a written contract by parol, and also because the evidence is inadmissible under the statute of frauds. The Court: Overruled. Judge Devereux: Exception. Q. Was anything said about the price should be paid on the day it was run? A. It was understood it was to be the posted Prairie price."
The majority opinion sets out paragraphs 3, 4, and 5 of the defendant's amended answer, showing that the defendant pleaded as a defense, in effect, that there was an agreement aquiesced in by the plaintiff that the oil might be stored until it settled, and then to be sold at the posted market price as run into storage, and settlement made on that basis. As heretofore stated, this was the sole issue. This defense was submitted to the jury by the trial court in paragraphs 10 to 13, inclusive, of the court's instructions to the jury. The court's instructions were full and complete, consisting of 19 separate paragraphs, most of which are quite lengthy. Paragraphs 1, 2, and 3 thereof define the issues between the parties. Paragraphs 4, 5, 6, 7, 8, and 9 submitted to the jury the plaintiff's theory of the case. These paragraphs were full and complete, and submitted the plaintiff's theory clearly and explicitly to the jury. Paragraph 10 of the court's instructions was as follows:
"You are further instructed that the burden of proof is upon the defendant to prove the material allegations of its answer after the plaintiff has produced his lease and the parties have agreed that there are 20,201.46 barrels of oil that the plaintiff has not accepted pay for, then the burden shifts to the defendant to prove a different contract and agreement than that stated in the lease."
Paragraphs 11 and 12 of the court's instructions advised the jury of the rights of each of the parties under the agreement pleaded by the defendant as a defense, that the oil should be stored, sold, and settled for in a manner different from that provided for in the lease; and paragraph 12 authorizes the jury to find in favor of the defendant in the event the jury believes from a preponderance of the evidence that the defendant was unable to deliver the oil to the pipe line either by reason of the overproduction of the Cushing field or by reason of the quality of the oil, and, acting in good faith under such conditions, the defendant, for the purpose of protecting and saving the said oil, entered into an agreement with the plaintiff, consenting that the defendant might place said oil in storage tanks for the purpose of permitting the same to settle and become marketable, and that after the same settled the defendant was to sell said oil or pay the defendant for his portion of the oil stored at the posted market price at *Page 66 the day the same was run into storage tanks, and if the jury should further find and believe that any such agreement was entered into, and after said agreement was entered into the defendant, acting upon such agreement, stored said oil, that, in effect, said agreement would bind the parties until such time as the plaintiff notified the defendant that the further storing and disposing of said oil under such terms would not be satisfactory and that the plaintiff desired his oil to be delivered to him.
I think the instructions of the court were full and a fair statement of the law applicable to the issues made by the pleadings of the parties and the evidence offered upon the trial; and that the testimony offered by the defendant hereinbefore set out tended strongly to support the general verdict of the jury in favor of the defendant, and that under the universal ruling of this court in such circumstances this court is without authority to set the verdict aside.
We cannot agree with the majority opinion that the court's refusal to give the plaintiff's requested instruction No. 1 was reversible error, for the reason that such instruction was not called for in the form that the same was tendered, and took from the jury the issue constituting the sole defense of the defendant, and was, in effect, tantamount to telling the jury to find for the plaintiff.
This is a legal action, one in conversion, and the parties, under the Constitution and statutes of this state, were entitled to a jury trial as a matter of right. The evidence was more or less in conflict upon the one issue of fact made by the pleadings, and such issue was submitted to the jury under proper instruction from the court. The verdict of the jury was in favor of the defendant, upon which the trial court rendered judgment. The testimony of the defendant, supra, was insufficient to take the case to the jury, and, we think, amply supports the verdict.
We think the majority opinion overrules perhaps more than a thousand cases decided by this court holding that "when controverted questions of fact are submitted to the jury, and the evidence adduced is conflicting and contradictory, but there is competent evidence reasonably tending to support every material allegation necessary to uphold the verdict and the trial court approves the verdict and renders judgment in accordance therewith, and a new trial is refused, this court will not disturb the verdict of the jury and the judgment of the court on the weight of such conflicting evidence."
"Where the instructions given by the court fairly and reasonably present for the consideration of the jury the issues joined by the pleadings and presented by the evidence, they are sufficient." McMaster v. City National Bank of Lawton,23 Okla. 550, 101 P. 1103.
That case followed the rule announced by the Territorial Supreme Court in Strickler v. Gitchel, 14 Okla. 523, 78 P. 94; Kuhl v. Supreme Lodge Select Knights and Ladies, 18 Okla. 383,89 P. 1126; Everett v. Akins, Sheriff, 8 Okla. 184,56 P. 1062; Archer et al. v. United States, 9 Okla. 569,60 P. 268; Kramer v. Ewing, 10 Okla. 357,61 P. 1064; Wade v. Cornish, 23 Okla. 40, 99 P. 643; and has been followed by this court without variableness or shadow of turning ever since.
If we are not mistaken in our conclusion that the one issue involved in the case was fairly submitted to the jury by the instructions of the court, and that the evidence in this case as set out, supra, reasonably tends to support the verdict of the jury, there is no escaping the conclusion that the judgment appealed from should be affirmed and that the majority opinion reversing the same is wrong.
On Rehearing.