(dissenting).
This case presents an effort by McNutt and Townley to obtain a large sum of money from Cooke on the theory that McNutt owed such sum to Townley and that he, McNutt, delivered cattle to Cooke upon consideration of Cooke orally agreeing to pay such money to Townley, and which cattle were under mortgage to Townley.
The desired judgment against Cooke was obtained on the testimony of McNutt, but the record indicates strong probability of injustice against Cooke, and the record definitely demonstrates that Cooke is entitled to a new trial to present his defense theory, and to have each item of his defense correctly and fairly presented to the jury, and to use the newly discovered evidence referred to in the motion for new trial on that' ground.
*1114Facts.which are established with certain7 ty beyond dispute .ar.e that on August-29th, 1947, Cooke and McNutt, by written con7 tract> entered into a. joint-venture or a. relationship- of employer and employee whereby McNutt, who was. engaged in the bush ness of buying and selling cattle, was to take and receive money furnished by Cooke and buy and sell cattle for Cooke ■ for a compensation to McNutt of 10 cents per hundredweight. Cooke furnished substantial funds and the business, continued about four months and involved several hundred head of cattle bought and sold by McNutt, The venture was a. definite loss to Cooke and he brought about dissolution of the relationship in December, 1947, and- upon accounting he took and received 126 head of cattle from McNutt which had been bought with his, Cooke’s money.
Thereafter, in January, this suit was filed and McNutt claimed that in addition to the 126 head of cattle delivered to Cpolce in December, 1947, that he had also, about January IS, 16, or 17th, delivered Cooke an additional 28 head of cattle (under mortgage to Townley)' upon condition or agreement of .Cooke to sell them and pay the money to Townley. It was the contention •in part that Townley had advanced $3,950 to McNutt in September, 1947, 'and that McNutt had bought these 28 head of cattle with Townley’s money and had given him a mortgage on them for repayment. All of this .was vigorously disputed by Cooke and one or more disinterested witnesses,, and by important physical and documentary-facts.
' Bear in' mind' that McNutt contended he-made this 28 cow deal and transaction with Cooke more .than two weeks after he and Cooke had terminated all business rela-‘ tions between them. It is not understandable why he would so transfer these cattle-to Cooke with whom he had severed all business • relationship instead of transfer-' ring them to the several other people with-whom he then continued to own and hold, cattle. Why didn’t he- turn them - over to Townley? -Or get permission of Townley to -sell them as he had-a number of other cattle which he-.had purchased with Town-ley’s money? Or at least’that.was tes&' fied as-to other'cattle by both McNutt and Townley. - When McNutt and Cooke started .operations together on August 27th, -19J7, they did ■ so by. written contract. When they closed their business of buying and selling cattle in December, 1947, and on about December 30th, or 31st, they made a written list or inventory of the Cooke cattle held by McNutt, and by written contract on the morning of January 3, 1948, they evidenced their complete settlement and termination, of their business relationship by written, contract. -Yet, according to McNutt’s testimony, two weeks later, without any written contract or even a written memorandum McNutt transferred or. delivered to Cooke 28 head of cattle under mortgage to Townley, on the mere oral promise of Cooke -that.he would sell them and pay the money to Townley. That was a transaction which did not purport to bring any consideration whatever to either McNutt or Cooke, but which made McNutt, liable to a penitentiary sentence, >at least,, if Cooke did not make complete payment, to Townley.. It is quite difficult to. believe that the transaction could possibly have been made as McNutt said it was, yet, Townley’s . right to sustain this judgment against-Cooke depends absolutely and solely, on that testimony by McNutt. Bear in mind, that when this replevin writ was issued about a -week later none of the 28 head of cattle were found 'in Cooke’s possession and' the sheriff’s return so stated. - Townley went with the sheriff to look for his cattle in Cooke’s - possession and although they found some 60 head of cattle being held by' Cooke,' Mr. Townley knew of the “not fo'und” return made by the sheriff. He' so testified; He also-testified that he did find about IS head of cattle that he could' identify, or -nearly that many that he thought he could -identify, but he and the sheriff left them in-Cooke’s possession and' the sheriff made' the' “not found” return as above stated. Townley had some theory that the reason, or one of the reasons that' was done, was because the' cattle were under a good shed and could have plenty of hay. "-But certainly Townley’s right to sustain the judgment in the full amount of $5,447.95'depends solely upon McNutt’s tes-.'-*1115timony as to his extraor.dinary 28 cow transaction with Cooke. McNutt stated positively that this oral transaction was had in the presence of a third person, E. D. Davis, but that was vigorously disputed by Cooke and by the disinterested person Davis, and all reason disputes it as well.
When was that 28 cow deal made between McNutt and Cooke when Cooke agreed to take the cattle and pay the Townley debt? ' McNutt said the deal was made January ’14th and he remembered and fixed that date because it was while he was engaged in a transaction with E. D. Davis and concerning the Davis farm. McNutt and Davis did have a transaction about the Davis farm on January 14th, with documents passing between them on that date, so that is the date according to McNutt when Cooke agreed to pay Townley. But note this, McNutt told Townley two weeks before on January 2nd that Cooke was going to pay him, as if the weird deal between Mc-Nutt and Cooke had theretofore been made. Cooke testified that McNutt so advised him on January 2nd, and as Cooke said “and every time I seen him afterward.” Cooke was sure it was that day because that, was the day he went to see McNutt and got him to sign the note and mortgage dated September 12th. That would clearly im.ply that McNutt made the 28 cow deal with Cooke on or before January 2nd. But that would not do for McNutt, that is, he could not place himself in the position of having made that deal with Cooke before January 2nd, because the mortgage was not filed for record until January 3rd, and if Cooke closed a valid deal for the 28 cattle on of before January 2nd, he would have them free of the Townley mortgage which was not filed until January 3rd. Up to January 2nd Cooke and Townley did not know each other. Townley so testified and so did Cooke. McNutt never told Cooke from August to January anything at all about Townley. So we have McNutt claiming to make this 28 cow deal on January 14th, but telling Townley two weeks before “that Mr. Cooke was going to pay him every cent he owed him,” in the language of Townley. Bear in mind that it was specifically testified that when1 McNutt and Cooke . and Cooke’s ■ bookkeeper made inventory of the 126 cattle late in December nothing whatever was said by any one about any Townley cattle or any cattle mortgaged to Townley, and in fact the Townley mortgage for $3,950 on the 25 head of cattle did not exist until it was signed January 2nd and recorded January 3rd.
Note that in this action filed January 22, 1948, Townley solemnly pleaded a note and •mortgage dated and alleged to have been .executed September 12th, 1947, for $3,950, a part of. his debt. Defendant Cooke did not know or anticipate anything else until evidence in plaintiff’s case in chief and near the close of his case, established conclusively that the note and mortgage'were ■executed on January 2nd, 1948, just a few days after final failure of the McNutt-Cooke enterprise of business venture.
■ , Thereupon defendant Cooke sought' to amend his pleadings to' allege that such documents were not executed in September, 1947, as alleged by Townley as the foundation of his action, but were executed fraudulently in January, 1948. At that later date McNutt was the disgruntled former partner of Coolce and if the note and mortgage were fictitious or did not represent any valid indebtedness or if either was otherwise knowingly invalid, then the transaction represented nothing more than a part of a deliberate attempt to defraud Cooke.
The trial court refused to permit Cooke to so amend his pleadings and to so present such issue to the -jury. I can see no justification for that ruling and I think the court manifestly erred.
It is not for this court to say that this January note and mortgage transaction, dated back to September, was fraudulent in whole or any part, but certainly the defendant was entitled to present that contention by pleading and evidence and to have it passed.upon by the jury.
The majority opinion confuses this request to amend with a former request which was made when the trial commenced. Then permission was requested merely to amend to allege that the execution of the note and mortgage on September 12, 1947, was in fraud. Of general creditors .'of -McNutt. I *1116think that request was propérly denied, but this later request was different in form and substance and it tendered an issue of fraud directly between McNutt and Cooke. Also the majority opinion erroneously refers to this application as having been made “after all the evidence was adduced and the case closed”. If that were correct the request might have been too late, but in fact this request was made at the close of plaintiff’s case. The information that-the note and mortgage were executed Januáry 2, 1948, came from plaintiff Townley as a witness in, his own behalf, and he was the last witness, called to establish plaintiff’s, case in chief. Therefore it would seem clear that this application was timely made. Also the error of the court in this particular was specifically called to the court’s attention in the motion for new trial.
In Platt v. Wyatt, 192 Okl. 172, 135 P.2d 990, this court held:
“Amendments to pleadings are liberally allowed so long as such amendments are in furtherance of justice, and amendments which even change the cause of action may be permitted, providing such amendments do not substantially change the plaintiff’s claim. 12 O.S.1941 § 317.”
This ruling has been followed in many cases both before and after. In McMillan v. Atlas Life Insurance Company, 195 Okl. 125, 155 P.2d 516, this court said:
'“The statute relative to amendment of pleadings contemplates allowance of amendments in furtherance of justice and to the end that a case may be fully tried on the merits if reasonably possible.”
Again in Detwiler v. Duncan, 199 Okl. 189, 185 P.2d 200, this court held:
“Amendments to pleadings are favored, and a trial court should be liberal in the allowance-of amendments, espe-dally where no element of surprise to the adverse party is involved. 12 O.S. 1941, '§ 317.”
•Now in this trial McNutt claimed he received this $3,950 from Townley in September, 1947, that he deposited it in a stated bank outside of Oklahoma City, and checked it out- of that bank in September, 1947, to buy the so-called “Townley cattle” including the 28 head of cattle above mentioned. Cooke could not have anticipated such testimony. The contrary was indicated by McNutt’s August contract with Cooke and by all of McNutt’s actions arid dealings with Cooke throughout September, October, November and December, 1947, so Cooke was surprised by this evidence. When he checked the records of that other bank he found no such sum was deposited there, though there was a smaller account there, and he offered as newly discovered evidence that the original checks in Mc-Nutt’s possession charged against that account, or photostatic copies thereof, would show that those checks or many of them were not used to buy any cattle át all. :I think defendant Cooke was entitled to a new trial on this newly discovered evidence which was quite competent on the issue of fraud which he timely sought to allege by amendment.
And I find from the record that the verdict and judgment against Cooke is excessive in the sum of $1,984.26 if the mortgage note transaction between McNutt and Townley was wholly free from fraud or other invalidity.' This sum is made up of items of $1,284.26 which, according to documents or written memoranda between Mc-Nutt and Townley, should have been credited on the note debt, and the sum of $700 represented by two. cows of the 28 head which McNutt first claimed were “Townley cattle” but which he later admitted were not such, but were “substituted,” as he stated. The purported substitution was invalid and .the trial court so instructed the jury, yet no corresponding deduction was made, but, on the contrary, the verdict and judgment was for the maximum amount of $5,447.95, resulting in the excess above stated.
When the trial court approved this jury verdict, or rather when he declined to disapprove it, his statements indicate an appreciation of the fact that self-contradictioii by statements and actions and documents cast serious do.ubt on the purity of motives and the verity of the testimony of McNutt-on which the verdict and judgment was based. That indicated attitude of the trial *1117court would alone have justified his granting a new trial under authority of our former decisions in Yarnell v. Kilgore, 15 Okl. 591, 82 P. 990; Hogan v. Bailey, 27 Okl. 15, 110 P. 890; Rison v. Harris, 50 Okl. 764, 151 P. 584; Oklahoma City v. Leggs, 175 Okl. 209, 51 P.2d 942; Hall v. Polson, 130 Okl. 136, 265 P. 1068, and others.
If that action of the court does not justify reversal it is beyond doubt a strong circumstance, adding certainty to the. conclusion that this court should grant a new trial and that Cooke be permitted to make all desired allegations of fraud and to submit the newly discovered evidence of documents of Mc-Nutt himself, to the end that all issues may be determined before Cooke is subjected to this liability which now shows to be so clouded with uncertainties and improbabilities as to brand it as wholly unjust unless and until the issues of fraud may be considered and disposed of.
And finally, let us note the valuation of the property involved. That is if defendant Cooke is liable at all it would only be to the extent of the valuation of the mortgaged property which McNutt claims that Cooke ■received. The mortgaged property was not found in Cooke’s possession, but any receipt of it by him was based on what McNutt said. McNutt only claimed that he delivered to Cooke 26 head of cattle under mortgage to Townley. In January, 1948, Mc-Nutt made a list of those 26 head (exhibit 7) and then wrote after each item a valuation figure. That total valuation amounted to $4,195. But at that time the mortgage debt to Townley amounted to $6,350 plus interest of several hundred dollars, as shown by the record. Thus McNutt would have Cooke receiving cattle worth $4,195 and thereby becoming liable for the above debt.
Then McNutt took the position that these valuation figures on exhibit 7 represented hot the then value of the cattle, but represented what he paid for them in September, 1947. How he could remember each purchase price figure is past understanding, as he specifically testified he had no book entries nor records of any kind to identify these separate cost figures, and he bought and sold an average of 80 to 90 head'of Cattle each month, some days he bought or sold 30 or 40 per day, by his own testimony, but that is no stranger than his testimony then as to increased values or profits, for according to his subsequent testimony he had a profit in these 26 head of cattle of $1,600. tie testified to a substantial profit as to each and every one of these 26 head amounting to an average profit of $61.53 per head, or-38 plus percent profit, while during the same period of time from August to and including December, 1947, he lost very substantial money on the cattle he bought for Cooke.
His final testimony as to this increased valuation places the total value of these 26 head at $5,795 for which he would have Cooke agreeing to assume and pay a debt greater by at least $500 to $700 while his first fixing of these valuations would have Cooke receiving cattle of the value of $4,-195 and agreeing to pay a debt of $6,350 principal and several hundred dollars interest.
I think the record indicates that when McNutt made this list of these cattle in 'January, 1948, which was made preparatory to bringing this action, he was listing his conclusion as to the then valuation of the cattle. The list was made in preparation to file' this lawsuit. The same exact descriptions and valuations were written into the affidavit in replevin as to these 26 cattle and so carried forward in the writ of re-plevin; and the question arises whether plaintiff can recover some $1,300 more for the alleged conversion of these cattle than he alleged they were worth in his affidavit in replevin.
It seems clear to me'that McNutt fixed the value of these cattle in January, 1948, at $4,195, but at the trial thirteen months later in February, 1949, he raised his sights and testified that in January, 1948, they were worth $1,600 more, or $5,795. It seems to me the record is conclusive on this point that the maximum amount plaintiff could have recovered against defendant Cooke was $4,195, and not the amount of the verdict and judgment $5,447.95.
I am authorized to say that Mr. Justice GIBSON concurs in these views.