Akers v. Hufford

KNIGHT, J.

— Defendants obtained judgment against plaintiff for $5,000 on a cross-eomplaint, and plaintiff appeals.

The litigation grew out of a written contract whereby plaintiff purported to sell, assign and transfer to defendants the exclusive right to prospect and drill for, produce and market oil and gas pursuant to government permit from lands leased or about to be leased from the government. At the time of the execution of the contract defendants paid to plaintiff $5,000, and the contract called for an additional payment of $7,500, for which amount plaintiff brought suit. In their answer defendants denied the essential allegations of the complaint and as affirmative defense pleaded fraud and failure of consideration; and in their cross-complaint they asked for a rescission of the contract upon grounds similar to those urged in the affirmative de

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fense, and for the repayment to them of the $5,000 theretofore paid to plaintiff. At the commencement of the trial plaintiff moved for judgment on the pleadings, and the motion was denied; whereupon he rested his case. Defendants then proceeded to introduce evidence in support of "their cross-complaint and plaintiff objected thereto upon the ground that said cross-complaint failed to set forth facts sufficient to constitute a cause of action or to warrant a rescission of the contract. The objection was overruled, and "at the conclusion of the trial the court made findings in favor of defendants and entered judgment accordingly, for the repayment to them of said sum of $5,000.

Summarized, plaintiff’s contentions for reversal are that the trial court erred in denying his motion for judgment on the pleadings and in overruling his objection to the introduction of evidence; and that the findings and judgment are not supported by the evidence.

The appeal was taken pursuant to the alternative method set up by section 953a of the Code of Civil Procedure; and as will be noted, the points urged by appellant on this appeal are based on the pleadings and the findings, and the claim of insufficiency of evidence; but aside from printing in his brief fragmentary parts of the cross-complaint, he has not set out in his brief or in any appendix thereto, any portions of the complaint, the answer or the findings; nor has he set out any of the evidence adduced at the trial, except certain portions of the documentary proof. However, in view of the circumstances related in an affidavit filed herein by plaintiff May 20, 1932, some two years after respondents’ brief was filed, we have examined the entire record in connection with the points made by appellant and find no merit in any of the contentions upon which he seeks a reversal. The denials of the answer and the matters pleaded as affirmative defense therein were obviously such as warrant the denial of the motion for judgment on the pleadings; and the allegations of the cross-complaint were legally sufficient to justify the trial court’s ruling on plaintiff’s objection to the introduction of evidence.