See also United States v. Stanolind Crude Oil Purchasing Co.,113 F.2d 194, 201(10th Cir. 1940). The second sentence is supported by the following cases: Citation Co. Realtors, Inc. v. Lyon, 1980 OK 68, ¶ 8, 610 P.2d 788, 790-91; State ex. rel. Southwestern Bell Tel. Co. v. Brown, 1974 OK 19, ¶ 20, 519 P.2d 491, 495; Smith v. Roederer, 1973 OK 113, ¶ 19, 516 P.2d 257, 261; Haggerty v. Key, 1924 OK 715, ¶ 18, 229 P. 548, 551, 100 Okla. 238, 241-42; Rogers v. Harris, 1919 OK 301, ¶ 14, 184 P. 459, 461, 76 Okla. 215, 218; McLean v. Southwestern Casualty Ins. Co., 1915 OK 987, ¶ 5, 159 P. 660, 662, 61 Okla. 79, 81. Instruction No. 18.
1. APPEAL AND ERROR — TRIAL — Opinion of trial court delivered in announcing judgment not "findings of fact" — Consideration on appeal. The opinion of the trial court, delivered in announcing judgment, does not constitute "findings of fact" and may not be considered as such or to vary the judgment of the court as contained in the journal entry; but when properly incorporated in the case-made, may be considered in determining the correctness of the conclusion on which the judgment is based. (Rogers v. Harris, 76 Okla. 215, 184 P. 459.) 2.
One of the reasons leading to this conclusion is that the purpose of such oral testimony is not to establish an agreement, but to prove fraud. The gist of the fraud consists in the false representation of the existence of an intention which in truth and in fact has no existence: Foster v. Dwire, 51 N.D. 581 ( 199 N.W. 1017, 51 A.L.R. 21); Rogers v. Harris, 76 Okla. 215 ( 184 P. 459); Planters Bank Trust Co. v. Yelverton, 185 N.C. 314 ( 117 S.E. 299); Deyo v. Hudson, 225 N.Y. 602 ( 122 N.E. 635), and other cases cited in 51 A.L.R. 66, note 15. "To profess an intent to do or not to do, when the party intends the contrary, is as clear a case of misrepresentation and of fraud as could be made."
The consideration paid is, at least, reasonably fair under the adverse conditions existing, and little, if any, overreaching appears. See McDonald, Adm'r, v. Strawn, 78 Okla. 271, 190 P. 558; Adam v. Porter, 58 Okla. 225, 158 P. 899; Rogers v. Harris, 76 Okla. 215. 184 P. 459; Washington v. Morton 90 Okla. 142, 216 P. 457; Derdyn v. Low, 94 Okla. 41, 220 P. 945. The plaintiffs in error contend that James Belvin did not pay these taxes, but that he merely loaned the money to his father to pay them. They urge that if it be true that James Belvin did pay these taxes, he did it voluntarily for the purpose of protecting his father in his ownership of the life estate in said land and not under such circumstances as would entitle him to be reimbursed by the other owners of said land or to have a lien thereon in order to obtain such reimbursement.
But if made with no intention of performing them the rule is different. ( Lawrence v. Gayetty, 78 Cal. 126 [20 P. 382, 12 Am. St. Rep. 29]; Rogers v. Harris, 76 Okl. 215 [ 184 P. 459]; Corbin Co. v. Preston, 109 Or. 230 [212 P. 541, 218 P. 917]; Papanikolas v. Sampson, 73 Utah, 404 [ 274 P. 856].) In such cases, however, as Lovell v. Dotson, 128 Wn. 669 [223 P. 1061], fraudulent intent at the time the promise is made is the gist of the action.
Although the general rule is that in a jury-waived civil action, a general finding is a finding of every specific thing necessary to be found to sustain a general judgment, and such a finding will not be disturbed on appeal in the absence of legal error, that rule is not applicable if the Trial Court, in announcing its judgment, expresses its opinion as to certain findings of fact and conclusions of law, when (as in the case before us) the court's statements are properly incorporated into the record. In such a case, the comments made by the Trial Court may form the basis for reversing the Trial Court. Miller v. Young, 172 P.2d 994 (Okla. 1946); Brinkley v. Patton, 149 P.2d 261 (Okla. 1944); and Rogers v. Harris, 76 Okla. 215, 184 P. 459 (1919). In making this ruling, the Trial Court held that the proper performance of services is an integral part of a prima facie case in suits on an open account for services performed.
He pointed out therein that the prior judgment did not conform to the intent and purpose of the condemnation proceeding; that it went beyond the authority of the court to enter such a judgment under the statute; and expressly stated that for those reasons the defendants were entitled to the benefit of amendment of that judgment as it should have been entered according to the stipulation of the parties and the applicable law. See 46 Am.Jur.2d, Judgments, Secs. 67 and 76; Rogers v. Harris, 76 Okla. 215, 134 P. 459. For the foregoing reasons I join in affirming the judgment.
of a well on a unit which included any part of the plaintiff's tract and contained in excess of 40 acres in surface area, if for oil, or in excess of 320 acres in surface area, if for gas, and that, in utter disregard of such representation and agreement, the defendant applied for and obtained from the Corporation Commission of the State of Oklahoma orders establishing 640-acre spacing and drilling units with respect to two gas formations underlying her land and thereafter drilled a well, on the drilling unit that included her land, which produced gas from both of those formations. However, although the evidence disclosed the defendant's applications for such orders, and the granting of such orders, the drilling of the well in question, and the production of gas from both of the formations covered by such orders, she not only failed to introduce any evidence to show that the defendant did not intend, at the time the alleged representation and agreement were made, to comply therewith (Rogers et al. v. Harris, 76 Okla. 215, 184 P. 459; Sooner Bond Co. of America v. Davis, 177 Okla. 143, 58 P.2d 300), but made no attempt to prove that the defendant's agent made any such representation or agreement, and he testified that he made no such representation or agreement. Therefore, insofar as fraud in procuring the lease is concerned, the plaintiff must rely upon her own testimony to the effect that the defendant's agent told her that deleting the language that was stricken from paragraphs 7 and 11 of the lease from would guarantee that she would receive royalty on the basis of units not exceeding 40 acres in surface area for oil and not exceeding 320 acres in surface area for gas, and that he guaranteed that her royalty would be computed on that basis, and upon the amendment of her petition to conform to that testimony.
While oral remarks such as made by the trial judge herein in announcing his judgment "when properly incorporated in the case-made may be considered in determining the correctness of the conclusion on which the judgment is based", to explain the judgment, or to show what considerations influenced the trial judge in formulating it, they may not be considered to vary or impeach the judgment. Miller v. Young, supra, Federal Surety Co. v. Little, 156 Okla. 75, 9 P.2d 447, Rogers v. Harris, 76 Okla. 215, 184 P. 459, and Ruby v. Warrior, 71 Okla. 82, 175 P. 355. See also Brinkley v. Patton, 194 Okla. 244, 149 P.2d 261.
And those conclusions formed the basis of the trial court's judgment for defendant which is attacked in this appeal. In Rogers v. Harris, 76 Okla. 215, 184 P. 459, we considered a case in which the judge of the trial court had expressed himself in a manner less formal and deliberate than here. In the opinion it was said: