Hardegree v. Zink

[38] The legal question for our consideration in this case is what rights, if any, does a partner or joint adventurer have when he retires, or is retired, from an active partnership or joint adventure arrangement. Also for our consideration is the factual question of whether Mr. Hardegree abandoned the joint adventure or whether he was expelled by Mr. Zink and then to discover and apply the applicable law to the facts as we find them. Additionally and finally we must determine whether Mr. Hardegree has forfeited his investment in the venture, and if not, then determine under the facts and law whether he may recover a share of the profits subsequent to his retirement or be relegated to the recovery of the value of his investment at the time of dissolution plus interest.

[39] The facts in this case and the contentions of the parties will have greater significance if we first give attention to the law. But at the outset we must notice that there is a lack of complete harmony in some of our former expressions and we must ultimately give some consideration to the Uniform Partnership Act which was enacted by our Legislature in 1955. 54 O.S. 1961 § 201[54-201] et seq.

[40] In Curtin v. Moroney et al. (1926), 117 Okla. 276, 246 P. 232, the plaintiff, Curtin, owned an undivided one-fourth interest in the partnership estate and voluntarily withdrew from the partnership which was engaged in the drilling of oil wells. The trial court found that plaintiff's partners were without fault and denied plaintiff any right to participate in profits earned subsequent to his withdrawal. In the body of the opinion we said:

"* * * Plaintiff contends that this was error, and calls our attention to the rule stated in Durbin v. Barber, 14 Ohio, 311, Bates on Partnership, vol. II, § 794, p. 842, and 30 Cyc. p. 688, to the effect that, if a court of equity fix upon the time at which a partnership shall be considered as having determined, and it appear that the capital of one partner was subsequently employed by another, who continued to carry on the business, the former is entitled to such proportion of the profits as his capital thus retained bears to the whole capital. We think this is the general rule, and, in the absence of any statutory provisions to the contrary, is supported by the great weight of authority, but the rule is not applicable to the facts of the case at bar in this state because we have a statute to the contrary. Section 8116, Compiled Statutes 1921, provides (emphasis supplied):

"`After a partner has given notice of his renunciation of the partnership, he cannot claim any of its subsequent profits, and his copartners may proceed to dissolve the partnership.'" (Notice that Section 8116 C.O.S. — 54 O.S. 1951 § 14[54-14] — was repealed in 1955, at the time of the adoption of the Uniform Partnership Act.)

[41] In Forbes v. Becker (1931) 150 Okla. 281, 1 P.2d 721, 80 A.L.R. 1, the plaintiff, Forbes, had invested $650.00 in oil well drilling equipment and obligated himself to pay his partner, Becker, $4,000.00 more for such equipment. He abandoned this partnership in August, 1926, at which time the partnership owed him $850.00 in wages as a "rough neck." His investment in the property remained at $650.00. On December 24, 1926, Becker gave the plaintiff, Forbes, $1500.00. Whether this was a complete partnership settlement for $1500.00 or whether Becker was paying Forbes $850.00 for his labor and $650.00 for Forbes investment in the drilling equipment was disputed by the parties. But whatever it was, we observed that if the partnership properties and equipment had been liquidated on that date Becker would have owed Forbes an additional sum of $97.51, if nothing be charged Forbes for wear and tear on the equipment during the time Forbes earned wages by using the partnership equipment. For the above equitable reasons, and other reasons set forth in the opinion, we affirmed the judgment of the trial court and held that the partnership settlement should not be set aside upon the ground of fraud. In the third paragraph of our syllabus, and without noticing Curtin v. Moroney, supra, and Sec. 8116, C.O.S. supra, we held:

"It is not a uniform rule that when, upon the dissolution of a firm by the withdrawal of a partner, or by an agreement for termination, property of the firm, for instance an interest in an oil and gas lease, and a contract to drill thereon, is taken over by one partner, and in such drilling a portion of partnership funds are used and some partnership tools are used, and the drilling results in discovery of gas in paying quantities, that the other partner is entitled to an interest in the lease or in the profits derived therefrom, but on the contrary the matter of a partnership settlement depends upon the nature of the trade, the mode of carrying it on, the capital employed, the state of account between the parties, the element of the bearing of the risk, and the conduct of the parties after the termination of the partnership."

[42] There is case law, as hereinafter noted in support of our syllabus No. 3 in the Forbes case, but such a rule, without more, authorizes complete "free wheeling" in the settlement of partnership estates without any guide lines whatever except the individual judge's conception of equity in any given case. In addition thereto it encourages an appeal in all such litigation in order to get the equity view of the court of last resort.

[43] Our syllabus No. 3 in the Forbes case provoked a very thorough and exhaustive study on the question of "Accountability of Partner or Joint Adventurer for Profits Earned Subsequently to Death or Dissolution", and is annotated in 80 A.L.R. pages 12 to 98, inclusive.

[44] At page 15 of the annotation the author states:

"It may be laid down as a general rule that, in the absence of special circumstances and subject to just allowance and deductions, where profits are made by a partner or joint adventurer subsequently to death or dissolution, through employment of the firm assets or in continuation of the business of the firm, he is accountable therefor to his copartner or co-adventurer or to the latter's legal representative."

[45] In support of the foregoing rule cases are cited from thirty-one states, the Supreme Court of the United States, and England, Canada and Ireland. Our decision in Curtin v. Moroney, supra, is cited in support of the rule.

[46] At page 30 of the annotation, it is said:

"In a few cases, probably as a development of statements contained in the early English cases, the view has been taken, contrary to the general rule laid down in II.a, supra (80 ALR page 15, supra), that there is no universal rule applicable to all cases, but that the accountability of a partner for profits earned after dissolution must depend upon the circumstances of the individual case. Or, as stated in the reported case (Forbes v. Becker, Ante, 1) `there is no universal rule; and it has been held by the highest authorities that there is not even a general rule that entitles a retiring partner to an interest in firm assets, or requires a partner using firm property or firm funds in his business, after the termination of the partnership status, to account or divide profits so made with a former partner." (Emphasis supplied.)

[47] Decisions from England and seven states in our union, including Oklahoma, are listed as following that rule. All seven states so listed, except Virginia, are also shown at pages 16 through 19 as supporting the rule above-quoted from the Curtin case.

[48] In the case now before us, Hardegree v. Zink, Mr. Hardegree contends that Mr. Zink entirely repudiated the partnership or joint venture and claimed the entire property as his own. At page 41 of the annotation the author states:

"Where a partner, in continuing the business of the partnership after dissolution, entirely repudiates the partnership and claims the assets as his own property in plain violation of the rights of his former partner, he will ordinarily be held accountable for subsequently earned profits."

[49] In the instant case Mr. Hardegree also contends in effect that he, Hardegree, was expelled from the firm or joint venture arrangement. At page 43 of the annotation the author states:

"Where dissolution is affected through the expulsion or exclusion of a partner from the firm, it is universally held that such partner is entitled to an accounting of the subsequently earned profits. * * * This rule is supported by practically all of the cases cited in the present division of the annotation."

[50] At page 48 of the annotation it is said:

"A partner cannot be denied the right to participate in the profits of the firm or venture upon the ground that he has failed to apply his share of the capital, where such failure is due to the fault or defeasance of the other partner."

[51] The pertinency of this quotation will become obvious in our discussion of the evidence, as will also the following quotation from page 75:

"It is generally held, where the assets of a firm have been used by one partner in continuing the business after dissolution, that the other partner or his legal representatives may take either the profits attributable to the use of his interest in the assets or interest on his share of the capital." (citing cases from 18 states)

[52] While the last quoted rule is a common law rule it also appears to be the rule established in the Uniform Partnership Act. See 54 O.S. 1961 § 201[54-201] et seq.; Anno. 2 A.L.R.2d at page 1095, under annotation entitled "construction and application of § 42 of Uniform Partnership Act as to rights of parties where business is continued after a partner retires or dies" and beginning at page 1084; and see also notes on The Uniform Partnership Act by Bandy and Elkouri in 1956 reported in 9 Oklahoma Law Review at page 387. In citing the statute and these commentaries I am not unmindful of the fact that the Uniform Partnership Act is not specifically made applicable to joint adventures. However, I am convinced that in the area now under discussion there is no substantial difference between common law and the provisions of the Uniform Partnership Act. I am also of the opinion that the common law as applied to the rights of joint adventurers after dissolution is no different, and should not be different, than the rule expressed in the Uniform Partnership Act in reference to partners. Anno. 55 A.L.R.2d at page 1396.

[53] In the instant case Mr. Zink contends that Hardegree completely and wholly abandoned the venture on or about July 8, 1957. The significance of "abandonment" is discussed in Anno. 55 A.L.R.2d 1391, under the subject "Rights in Profits Earned by Partnership or Joint Adventure after death or Dissolution", at page 1396. Therein it is said:

"While there is a possibility of different results being reached in the case of dissolution by abandonment and dissolution by expulsion, in which latter case the dissolution may be said to be due to fault or fraud of one of the parties, the cases as a general rule make no distinction between the various forms of dissolution with respect to the accountability for subsequently earned profits. If the partner, instead of winding up the affairs of the firm and effecting a settlement with his copartner or the latter's representative, continues the business and uses the firm assets in earning profits, it is immaterial (except as the question may be affected by express contract or by the fault or wrong of either party) in what manner the dissolution was affected." (See 5(a), infra, page 1402.)

[54] In 55 A.L.R.2d page 1412, it is said:

"The later cases are not in accord on the question whether abandonment of a joint adventure constitutes a reason for denial of a share in the profits thereafter earned."

[55] From my examination of the record in this case it appears that on March 11, 1957, Hardegree owned the lease in question, subject to the Cotten interest in the north-west 40 acres. Hardegree had drilled five wells on the lease, four of which had been cased. He had some rods, tubing and check valves on the lease of his estimated salvage value of $2200. He owned $450.00 worth of oil in storage tanks as well as a Fort Worth spudder, free of liens, which he valued at $3,000.00.

[56] On March 11, 1957, Hardegree was in financial difficulties and approached Mr. Zink. On this date Hardegree and Zink entered into a contract wherein it was agreed that Zink would spend $8,215.70 in the development of the east 80 acres for an undivided one-half interest therein and in the equipment, less the spudder. $800.00 was paid to Hardegree in cash, Hardegree having represented that his title to the lease was good and that he would be able to remove and discharge the liens and other obligations, some of which were in the form of payments to be made out of production. Zink was not made fully aware of the amount and status of the liens and claims pending, and it seems doubtful if Hardegree fully appreciated their seriousness.

[57] However, by April 1, 1957, Zink had investigated the lien and judgment records in Kiowa county and had also learned that the lessor had employed counsel to forfeit the entire lease for non-production. At that time Zink's investment in the lease was less than $1,000. He did not rescind for fraud but brought these matters to Hardegree's attention and a supplemental agreement was entered into on or about that date. The original contract was unchanged except that since it would be necessary for Zink to advance money to pay off the liens and judgments, and oil payments, and make an effort to save the lease as against the threatened cancellation suit by the lessors, he demanded and received an undivided one-half interest in the west 80 acres subject to the Cotten interest. He was also to advance to Hardegree $250.00 per month for living expenses until these expenses could be taken from Hardegree's share of the production. Money advanced by Zink to pay off liens and judgments was a loan of money to Hardegree, if I correctly understand the agreement. In a recorded telephone conversation with Hardegree's attorney on April 4, 1957, Mr. Zink made the following statement:

"I was to advance the ready cash to pay off his indebtedness and clean up the liens against the Poole lease, furthermore I intended to advance Mr. Hardegree $250.00 a month, thereby enabling him to live until such time as the oil runs were enough to enable this money to be taken from income. In turn, Mr. Hardegree was to give me an assignment of the entire Poole Lease or a total of 160 acres less a 20/128ths interest to Mrs. Lucille Cotten, his mother, this interest to be in the northwest forty acres only."

[58] On or about April 5, 1957, the entire working interest in the quarter section, including the Cotten interest, was assigned to Zink in order to facilitate the clearing of liens and to discourage the filing of others. It was also believed that this action would discourage the filing of forfeiture proceedings by the lessor. At or about the same time Hardegree executed a bill of sale to Zink conveying title to the Fort Worth spudder. However, if I correctly understand the facts this was intended as a mere naked legal title and conveyed no equitable interest. From the record Zink is claiming the spudder but in Hardegree's brief it appears that he recovered it in 1959.

[59] It is contended by Zink, and the trial court found, that subsequent to April 1, 1957, substantial additional indebtedness and liens were found which had not come to Zink's attention prior to April 1, 1957. I have been unable to determine that this is a correct conclusion. At pages 370 and 373 of the record I find Mr. Zink testifying on cross examination as follows:

"Q. What really bothered you that showed up about the last of March (1957) besides the two thousand dollars to Frierson; what one thing really bothered you.

"A. $144.00 to Mr. Ratliff, four hundred some odd dollars to Mr. McGlassen; an additional four hundred some odd dollars to Tri County, and various others.

* * * * * *

"Q. Tell we what else there was?

"A. He was hard up for living expenses"

[60] Page 373:

"Q. This $3800.00 includes the two thousand dollar payment to Mr. Gillespie for claims; two or three items where you paid him a small fee; $100.00 to Ralph Greb; $1000.00 to Frierson; all of those were within the $3800.00?

"A. Yes sir."

[61] All claims were ultimately settled for $3,847.71 and, I believe, in the exact amounts which Hardegree had said prior to April 1, 1957, were the correct amounts. I believe Mrs. Zink's records and Mr. Zink's testimony support this conclusion.

[62] Between April 1, and June 9, 1957, the parties were having their difficulties. Under their agreement Hardegree was to perform labor, to drill additional wells, and put them into production. Zink testified that Hardegree would not stay on the job and work. Hardegree testified that his absence from the lease was largely because of heavy and continuous rains. He also testified that Zink was refusing to provide the working capital and was not advancing his living expenses of $250.00 per month. Tools were lost in the wells on at least two occasions thus delaying the advent of production.

[63] Hardegree testified that prior to July 8, 1957, he told Mr. Zink that Zink was going to start putting up money or that he (Hardegree) "wasn't going to drill any more until he made other arrangements." The whole trouble, according to Hardegree, was that Mr. Zink was not providing living expenses and money to operate.

[64] Zink testified that on "June 9th (1957) Mr. Hardegree told me that he was through with the lease, wasn't going to do any more with it." However, his further testimony shows that Hardegree was working the next morning on the lease and that Zink rough necked for Hardegree practically all through the month of June and the first two days in July. He further testified from his notes as follows:

"Q. What happened the 3rd day of July?

"A. A well that Mr. Hardegree was drilling — I was his rough neck, which was practically all of the month of June and the first two days in July, I rough necked for Mr. Hardegree which I never agreed to do; I never agreed to furnish him any help, thinking I might help him produce the lease. I took over the job of roughneck, saving about $10.00 a day. The records will show the money I saved by rough necking for Mr. Hardegree; it was turned over to him all during the month of June. On the 3rd day of July, I marked on the calendor that Mr. Hardegree lost the tools in the hole, jars broke 494 feet, I believe. Then on the 8th of July (1957), in the morning of July 8th, Mr. Hardegree came to my little cabin in Gotebo and I told him — That was Monday after he lost the tools — we also on July 3rd, 4th and 5th were running all over Kiowa county trying to find or borrow some tools to get his tools — and we were trying to fish the tools out. On Monday morning Dan (Hardegree) came to my shack and I told him that I was through with him, that I wasn't going to have any more to do with him; I didn't think he knew how to drill or how to operate an oil well, that I was completely through, that whatever he did was his own business; he had convinced me that that was true. * * * by July 8th I was fully convinced that he didn't know."

[65] Hardegree testified that subsequent to July 8, 1957, he borrowed some tools from a Mr. Fitzgerald, employed a Mr. Ralph Greb to help him, and tried to fish the tools out of the well. He further testified that when he was about down on top of the tools the gas blew out and caught on fire. He saved the rig but his arm was burned in the process. This, he says, occurred on or about July 10, 1957. He did no further drilling that morning and states that he made up his mind that he was not going to work without help. According to his testimony he stayed around until about September, 1957, and claims that he demanded a settlement of Mr. Zink every "30 or 45" days after July, 1957. He did no further work on the lease but testified that he was on the lease 50 to 75 times after July, 1957, and saw Mr. Zink thereafter approximately 25 times. Zink testified that he saw Hardegree only two or three times after July 8, 1957, and on each occasion got into an argument.

[66] As bearing directly upon the question of whether Hardegree abandoned the venture or whether it was terminated by Zink, Mr. Zink testified on cross examination as follows:

"Q. You are the one that terminated the contract, aren't you.

"A. I told him I was through, I wasn't going to pay him any more money.

"Q. You terminated the contract as far as that is concerned.

"A. Yes.

"Q. Thereafter, Mr. Zink, did Dan ever come in and try to pay you and say `Let's do something?

"A. Not with any money to help.

* * * * * *

"Q. Did he come down several times?

"A. He was in and out of the lease.

"Q. Quite a lot?

"A. I talked to him two or three times.

"Q. Lots of times he was there and you didn't see him?

"A. I expect so."

[67] As bearing upon the question of whether Mr. Zink repudiated the joint venture and claimed the assets as his own property in violation of the rights of his coadventurer he alleged in hisanswer that he was the sole owner of the lease (subject to the Cotten interest); that he had been the sole operator of the lease since April of 1957, when Hardegree assigned all of his right and interest in the lease for a good and sufficient consideration, which was fully paid; that the oral agreements between the parties were superseded by an oral agreement whereby Hardegree agreed to vest full and complete title in Zink for a consideration which was fully paid and performed, and that this last agreement was made and completed on or about July 8, 1957. He testified that no agreement was reached on or about July 8, 1957, although he did testify that he had been claiming the legal and equitable title to the lease, subject to the Cotten interest since receipt of the assignment in April, 1957, and more especially since July 8, 1957. His testimony is reported as follows:

"Q. Mr. Zink, as I understand it, at all times since you acquired title to this, and particularly since July 8, 1957, you have contended you were the sole owner of this lease?

"A. Yes, sir.

"Q. With the exception of the contract with Spurgeon?

"A. Yes, sir."

[68] I am unable to agree that Mr. Hardegree deliberately abandoned the oil and gas leasehold estate. I am inclined to the view that Hardegree was forced from the venture because, as Mr. Zink testified he (Mr. Zink) refused to advance Hardegree any more money (as provided in their agreement) and he (Zink) agrees that he terminated the contract. If I am correct in these conclusions then under the law as heretofore quoted from 82 A.L.R. at page 75, Hardegree is entitled to elect whether he will participate in the profits from the continued operation of the venture or whether he will recover the value of his investment in the venture as of July 8, 1957, with interest, assuming of course that he is not estopped by laches from participating in the profits. See 80 A.L.R. page 96, et seq. for cases dealing with laches and estoppel.

[69] The trial court found that Hardegree had been paid for his services between April 1, and July 8, 1957. The money advanced by Zink to Hardegree during that period was not advanced as pay for services, but under the agreement was a loan or advancement of money for Hardegree's living expenses until such time as his living expenses could be taken from Hardegree's share of production.

[70] The trial court further found that Zink developed the lease, placed it in production, and saved the lease by his own efforts. This is a correct conclusion. Overlooked, however, is the fact that Zink was brought into the venture to assist in these accomplishments, and that it was Zink who terminated the venture.

[71] The trial court found that there was no value in the oil and gas lease as of April 1, 1957. In this connection, however, it should not be overlooked that on March 11, 1957, Zink agreed to pay $8,215.70 for an undivided one-half interest in the east 80 acres, and on April 1, 1957, agreed to loan an additional sum to Hardegree sufficient to pay off the disclosed indebtedness plus living expenses for a one-half interest in the west 80, less the Cotten interest. Additionally Hardegree introduced analysis of cores which had been taken from the wells prior to March 11, 1957. He testified that he and Zink in reading these reports prior to March 11, 1957, concluded that the east 80 acres would produce a minimum of 40,000 barrels of oil and a maximum of 100,000 barrels, and that at that time oil was selling at $2.82 per barrel. No expert witnesses were called by either party to determine the productive capacity of the sand or whether the oil would be recoverable from the sand. It is asserted that:

"There is competent evidence that none of the wells so drilled (by Hardegree prior to March 11, 1957) would produce either oil or gas in paying quantities."

[72] This asserted fact was not known on April 1, 1957, and it had not been discovered by the parties as of July 8, 1957. It is significant that while Zink had only invested $7,993.30 in the venture on July 8, 1957, (a sum less than he agreed to pay for one-half interest in the east 80) he had sufficient confidence in the venture so that the trial court was able to determine at the trial that Zink had invested the total sum of $22,161.86 in the venture; authorized $1,000. for Mrs. Zink's services as bookkeeper; denied Zink's mileage claim of $7,700, denied his claim for other traveling expenses in the sum of $1500, and his claim for personal services upon the lease of $30,000. The court made no finding as to the value of Zink's claims as aforesaid for the reason that judgment was being rendered for Mr. Zink. Mr. Zink says that he "virtually bankrupted himself, even mortgaged his home". These facts tend to show that Mr. Zink had confidence in this lease continuously from and after March 11, 1957. I am unable to agree that there was no substantial speculative value in the lease as of April 1, 1957, and on July 8, 1957. Hardegree's equipment and oil in storage tanks, according to his testimony, had a value of $6,117.

[73] The trial court found that Hardegree "has no right, title, claim, or interest in and to the oil and gas leasehold estate * * * for the reason that he has forfeited any that he did have in the said oil and gas leasehold estate by failure to contribute either time and effort, or capital, towards the development of the oil and gas leasehold estate, or to perpetuate the same." No authorities are cited by counsel supporting this finding of forfeiture.

[74] The court supported its finding of "forfeiture" upon the ground that Hardegree failed to contribute time, effort and capital, and failed to perpetuate the lease.

[75] On the question of whether Hardegree had contributed time, effort and capital, it must be remembered that as of March 11, 1957, Hardegree had acquired the lease, had drilled five wells and cased four; had accumulated oil in storage tanks, and after July 8, 1957, Mr. Zink retained the casing, rods, tubing and check valves, and had the use of the spudder at least until after the Polk contract in 1959.

[76] It must also be remembered that Hardegree has contributed an undivided one-half interest in the oil and gas lease, subject to the Cotten interest. We do not know the value of that one-half interest. It is true that as of March 11, 1959, Zink agreed to pay $8,215.70 for an undivided one-half interest in a clear title to the east 80 acres. However, this does not necessarily reflect its true value for the reason that Zink did not buy his one-half interest in the east 80 from a seller willing but not forced to sell, but from a seller forced to sell. This is especially true in regard to the supplemental agreement of April 1, 1957, involving the west 80. In any event, however, it is clear that as of July 8, 1957, Hardegree had a greater investment of time, effort and capital in the venture than did Mr. Zink.

[77] I have found no case which purports to authorize a forfeiture under facts comparable to the facts presented here.

[78] Counsel invite attention to Dike et al. v. Martin et al.,85 Okla. 103, 204 P. 1106, and Burkett v. Snakard et al., Okla.,365 P.2d 1006.

[79] In Dike v. Martin, the plaintiffs, Martin, Martin, Martin, and Webster, brought action against Dike, Smith, and Pitcher, as defendants, wherein each plaintiff sought a decree determining that he was the owner of an undivided one-sixth interest in a lead and zink mining venture. The facts show that a 40 acre lease was acquired and three exploratory holes were dug which did not reveal the presence of lead or zink in sufficient quantity for mining. Each adventurer having paid his share of these costs as per agreement. It was then determined that the "north forty" acres would be acquired for exploratory purposes. A contract for lease was acquired by Dike, and two holes drilled on the "north forty." One of the Martins inquired of the cost of drilling so that he could pay for plaintiffs' share. Dike said there was no hurry and that he did not have the exact depths. The third hole on the "north forty" indicated lead and zink in commercial quantities and Martin stood ready and willing at all times to contribute plaintiff's share of the cost of the three wells on the "north forty." Dike accepted Martin's check for plaintiffs' share of these costs but did not cash it after consulting with Smith. Dike and Smith had not given plaintiffs any notice of any intention to terminate the venture as to plaintiffs.

[80] In the body of the opinion therein it was said:

"If either party to the joint adventure had refused to substantially perform his obligation, his associates might terminate their relation with him and carry out the enterprise to his exclusion, and if for this, or any other valid reason, they chose to terminate the relationship, they could do so only by giving notice to him that the relationship was then and there ended." (emphasis supplied) (Unfortunately our Syllabus No. 6 announced this as the general rule.)

[81] The foregoing quotation is a correct statement of the law under the facts in that case, because under the specific terms of their contract E.A. Martin, plaintiff was required to pay the drilling contractor immediately upon the completion of each hole, and each party was required to immediately deliver to E.A. Martin, trustee, his share of the drilling costs within five days from that date, and "if not paid within five days from that date, he shall forfeit and relinquish all right of benefit in the said lease." Thus it appears that the interest of a party in the lease would be forfeited under the contract unless he paid within the five days. Additionally it should be noticed that plaintiffs in that case had no investment of time or money in the "north forty" but only a contract right to continue in the venture of the "north forty" by paying their share of the costs of exploration. The case is not helpful where as here the plaintiff, Hardegree, had a substantial investment in the lease in question.

[82] In Burkett v. Snakard et al., Okla., 365 P.2d 1006, 1008, we said:

"At the conclusion of the trial, the court found that a joint venture had been entered into, that it had thereafter been abandoned by plaintiff, that a settlement had been made between the parties for a nominal sum, and rendered judgment for defendant." (Emphasis supplied.)

[83] The record in that case amply supported the trial court's finding of abandonment and subsequent settlement by theparties for a nominal sum, and it was affirmed. I fail to see how it can be said that the Burkett case is authority for the proposition that abandonment of a joint adventure by a co-adventurer may serve to deprive him of the right to an accounting. It is authority for the proposition that where a joint adventurer abandons the venture, and enters into a settlement of his interest in the venture, and the trial court so finds, this court will not set the judgment aside unless it is clearly against the weight of the evidence.

[84] Before closing this dissent I must confess that I am not completely satisfied that Hardegree is entitled to share in the profits of the venture as prayed by him. It may be that he is estopped. However, I am thoroughly convinced that his investment in this property as of July 8, 1957, and its value as of that date, was greater than the contribution which had been made by Mr. Zink. If this is a correct conclusion it must follow that he is entitled to be compensated for his one-half interest in the venture after first subtracting the value of his contractual obligations to Mr. Zink. The case should be reversed for new trial.

[85] For the foregoing reasons, I respectfully dissent.

[86] I am authorized to state that IRWIN, J., concurs in the views herein expressed.