Both Mahan Rowsey and Jones and Pellow contend that failure of the lien claimants to name the non-operator working interest owners in the lien statements precludes them from having a validly perfected lien against the working interest of the unnamed owners. They rely primarily on Joe Brown Company v. Best, 601 P.2d 755 (Okla.App. 1979); Gaddis-Walker Electric Co., Inc. v. Phillips Petroleum Company, 526 P.2d 964 (Okla.App. 1974); and Forry v. Brophy, 116 Okla. 99, 243 P. 506 (1926). On the other hand WellTech argues, based upon an agency theory, that Mahan Rowsey was agent for the non-operator working interest owners and, by perfecting its lien as to the agent, it also perfected as to the principals, the non-operator, non-debtor working interest owners who were not named in the lien statement. For this proposition it relies on State ex rel. Mothersead v. Continental Supply Co., 137 Okla. 24, 278 P. 269 (1929).
A judgment declaring a lien and ordering foreclosure and sale cannot be rendered unless the account and lien statement have been filed at the time, at the place, and in the manner provided by the statutes pursuant to which it is created.Forry v. Brophy, 116 Okla. 99, 243 P. 506 (1926); Wass v. Vickery, 158 Okla. 227, 13 P.2d 142 (1932); Palmer v. Crouch, Okla., 298 P.2d 1041 (1956); Neves v. Mills, 74 Okla. 7, 176 P. 509 (1919); Bryan v. Orient Lumber Coal Co., 55 Okla. 370, 156 P. 897 (1916). Not having alleged and proved compliance with the conditions imposed by 42 O.S. 1981 § 142[ 42-142], plaintiff below was clearly not entitled to a judgment declaring or foreclosing a mechanics or materialman's lien.
This court will consider as withdrawn all evidence which is most favorable to the party demurring." Forry v. Brophy, 116 Okla. 99. 243 P. 506. In this case the jury passed upon the issues under instructions which were so favorable to the contention of the defendant that they provoked no exceptions whatever.
The demurrer admitted all matters well pleaded, but these allegations are in conflict with the clear provision in the policy expressly denying authority to an agent to make an agreement of that kind. It is well settled in Oklahoma and elsewhere that where a written instrument is the foundation of a civil action and a copy of it is attached to the pleading, it controls over the pleading in respect of any conflict between the two. Hyde v. City of Altus, 92 Okla. 170, 218 P. 1081; Mason v. Slonecker, 92 Okla. 227, 219 P. 357; Forry v. Brophy, 116 Okla. 99, 243 P. 506; Home Ins. Co. v. Whitchurch, 139 Okla. 1, 281 P. 234; School District No. 60 v. Crabtree, 146 Okla. 197, 294 P. 171; Deere v. Gypsy Oil Co., 160 Okla. 237, 15 P.2d 1086; Devine v. Pyanhunkah, 170 Okla. 178, 39 P.2d 132; Maxwell-Chamberlain Motor Co. v. Piatt, 65 Colo. 140, 173 P. 867; Stillwell Hotel Co. v. Anderson (Cal.App.) 42 P.2d 720; Aetna Ins. Co. v. Long (Tex.Civ.App.) 47 S.W.2d 854; Rounds v. Owensboro Ferry Co., 253 Ky. 301, 69 S.W.2d 350; Frigorifico Wilson De La Argentina v. Weirton Steel Co. (C.C.A.) 62 F.2d 677.
There must be appropriate allegations in the pleadings to support a judgment. U.S.F. G. Co. v. Company (Ore.) 50 P.2d 584; Forry v. Brophy (Okla.) 243 P. 506; City v. Fields (Okla.) 43 P.2d 64; Boulter v. Cook, 32 Wyo. 461.
Under these circumstances we will treat as withdrawn all of the evidence favorable to the demurrant. Forry v. Brophy, 116 Okla. 99, 243 P. 503. The evidence on behalf of plaintiff briefly disclosed the following situation: Plaintiff had lived some 30 years in the vicinity of the property in controversy; his occupation was that of an oil driller and he had been so engaged for about 20 years. He first met the defendant on August 3, 1933, at which time the plaintiff was working on an oil well some twelve miles from Sapulpa; that the defendant inquired whether the plaintiff knew of any leases or royalties for sale: that plaintiff first replied that he did not and then upon reflection advised the defendant that he owned a one-sixteenth interest in the leases in controversy and that there was a well being drilled thereon; that the defendant asked the plaintiff for a price on said property and was informed by plaintiff that the interest was worth $100 if the well had not been drilled in, and that the defendant then inquired whether plaintiff would sell for said sum, and was advised that he would: that the defendant thereupon state
It has been decided many times by this court that where there is a conflict in the allegations set forth in the pleadings and the exhibit thereto attached, upon which the cause of action is based, the language of the exhibit is controlling. Deere v. Gypsy Oil Co., 160 Okla. 237, 15 P.2d 1086; Mason v. Slonecker, 92 Okla. 227, 219 P. 357; Forry v. Brophy, 116 Okla. 99, 243 P. 506; Home Insurance Co. v. Whitchurch, 139 Okla. 1, 281 P. 234; School District No. 60 v. Crabtree, 146 Okla. 197, 294 P. 171. There are no allegations in the petition that there had been any settlement made by the plaintiff, Alice Pyanhunka, and Harry Pyanhunkah, or the defendant George Mellott, administrator of the estate of Harry Pyanhunkah, deceased, and it being admitted by the interveners that they had received their one-third interest in the amount of $200 that had been collected, and it being clear under the terms of the contract that they were only to receive, and their assignment only to attach to, the one-third interest that was recovered, the demurrers to the petition in intervention were properly sustained.
This exhibit, of course, controls, and limits the allegations of the petition. See Forry v. Brophy, 116 Okla. 99, 243 P. 506. The opinion in part is as follows:
It is contended that the petition did not set up that the premises were vacant and unoccupied, but the proof, which we think sufficient for that purpose, has been introduced, and now, if need be, the petition will be treated as having been properly amended. St. Louis-San Francisco Ry. Co. v. Simmons, 116 Okla. 126, 242 P. 151; Forry v. Brophy, 116 Okla. 99, 243 P. 506; Roxana Petroleum Co. v. Covington State Bank, 98 Okla. 266, 225 P. 375. We think the proof is amply sufficient to show that the property was vacant and had been abandoned, the mine was caving in, the roof over same was falling down, the pumps were idle and rusty, the houses were either broken open or left open with the exception of one door, and a man could crawl through the side of the house which was locked; the dwelling house was vacant; the owners went upon the premises, found the same apparently abandoned and rapidly becoming valueless as a mine, and they put up notices thereon forbidding trespassers, and especially those responsible for the wrong, to go on the premises, and served a written notice upon Guy Rees.
The settled rule in this state is that a demurrer to the evidence admits every fact which the evidence in the least degree tends to prove and all inferences or conclusions that may be reasonably and logically drawn from the evidence; and this court will consider as withdrawn all evidence which is most favorable to the party demurring. Forry v. Brophy, 116 Okla. 99, 243 P. 506; Nelson v. Peterman, 119 Okla. 125, 249 P. 333; City of Pawhuska. v. Button, 123 Okla. 61, 251 P. 1101. This finding of fact is supported by the evidence.