Opinion
No. 809
Opinion Filed May 9, 1911.
APPEAL AND ERROR — Review — Conflicting Evidence. Where a case is tried by the court without the intervention of a jury upon controverted questions of fact, and there is evidence reasonably tending to support the findings of the trial court, such findings will not be disturbed on the weight of the evidence.
(a) Where the evidence is partly oral and conflicting and the finding of the court is general, such finding is a finding of every special thing necessary to sustain the general finding, and is conclusive upon this court upon all doubtful and disputed questions of fact.
(Syllabus by the Court.)
Error from District Court, Blaine County; James R. Tolbert, Judge.
Action by the First National Bank of Watonga against H. V. Lookabaugh. Judgment for defendant, and plaintiff brings error. Affirmed.
W. O. Woolman and Seymour Foose, for plaintiff in error.
R. B. Forrest, for defendant in error.
On November 29, 1907, the plaintiff in error, as plaintiff, sued the defendant in error, as defendant, in the district court of Blaine county to recover an alleged balance of $984.67, together with $50 as attorney's fees, on a certain note made to Jerome Harrington on September 16, 1907, for its benefit, being payable on demand, and to bear interest from date until paid at the rate of 12 per cent. per annum. This note, together with another of the same date and amount, and payable in a like manner, was secured by a chattel mortgage on 300 head of steers, two years old, and 250 head of hogs of different ages and sizes. Defendant answered, admitting the execution of the notes and mortgage as alleged, and that plaintiff demanded the payment thereon about the 27th day of November, 1907, and that said notes were paid on or about the 16th day of November, A.D. 1907, at which time 228 head of said cattle were delivered to the plaintiff at an agreed consideration of $8,109.12, which overpaid the two said $3,000 notes and another note in the sum of $2,100 due plaintiff in the sum of $145.12. The following agreement as to said settlement was entered into:
"Lookabaugh Cattle Deal.
228 head wt. ...................................... 203107 360 ---------- 12190000 509510 ---------- 7314.1200 Pasture ........................................... 70.00 Feed bill ......................................... 725.00 ---------- 8109.12
"We hereby agree to allow H. C. Lookabaugh eight thousand one hundred nine and 12/100 dollars, for the 228 steers to be shipped to the National Live Stock Commission Co. at Kansas City, Mo., on Nov. 16, 1907.
"The said amount to be placed to his credit on notes as follows:
"One note of $3000.00, date Sept. 16, 1907, due on demand.
"One note of $3000.00, date Sept. 16, 1907, due on demand
"One note of $2100.00, to Jerome Harrington due on demand.
"First National Bank of Watonga, O. T.,
"By Ed S. Wheelock, Cashier."
The evidence tended to prove that said cattle were delivered at the railroad stock pens at Watonga, Okla., by said plaintiff, and shipped to Kansas City, and there sold for the benefit of said plaintiff. The cattle, when sold, failed to realize the sum of $8,109.12 by the amount sued for herein, to wit, $984.67.
A jury was waived of record, and there was a trial before the court on the issues joined. This court has time and again held that:
"Where a case is tried by the court without the intervention of a jury, upon controverted questions of fact, and there is evidence reasonably tending to support the findings of the trial court, such findings will not be disturbed on the weight of the evidence.
"Where the testimony is oral and conflicting, and the finding of the court is general, such finding is a finding of every special thing necessary to sustain the general finding, and is conclusive upon this court upon all doubtful and disputed questions of fact."
( McCann v. McCann et al., 24 Okla. 264, 103 P. 694; Seward v. Casler et al., 24 Okla. 275, 103 P. 740; Rochester Brewing Co. v. State, 26 Okla. 309, 109 P. 298; Roberts v. Markham, 26 Okla. 387, 109 P. 127; Freeman v. Eldridge, 26 Okla. 601, 110 P. 1057.)
The judgment of the lower court is affirmed.
All the Justices concur.