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Bovaird Supply Co. v. Mcclement

OCTOBER 5, 1961.

THE BOVAIRD SUPPLY COMPANY, PLAINTIFF-APPELLANT,

v.

ROBERT MCCLEMENT, DEFENDANT-APPELLEE, AND OMAR W. MINTON, JR., DEFENDANT.



Appeal from the Circuit Court of Franklin County; the Hon. ROY O. GULLEY, Judge, presiding. Affirmed.

HOFFMAN, PRESIDING JUSTICE.

Plaintiff corporation appeals from a judgment in the amount of $80.31 entered by the trial court in its favor against the defendant Robert McClement. Plaintiff had sued defendant Robert McClement along with another defendant, Omar W. Minton, Jr., for the purchase price of oil field equipment and supplies which plaintiff had sold on credit. The case was heard by the court without a jury, and a judgment was entered for the plaintiff against the other defendant, Omar W. Minton, Jr., in the amount of $7,095.34, but the judgment entered against the defendant Robert McClement was in the sum of $80.31 only. It was the failure of the trial court to enter judgment against the defendant Robert McClement in the sum of $7,095.34 which caused the plaintiff to bring this appeal. The entire issues on appeal require an extensive review of the evidence presented to the trial court and this we have done.

Plaintiff, having its principal office in Tulsa, Oklahoma, was in the business of selling oil field equipment and supplies through several outlets in Illinois, one of which was a store in Salem. Defendant Robert McClement was the operator of a super market but had "dabbled" in the oil business for a period of 10 years. One Omar Minton, Sr. was in the wholesale meat and produce business and was a customer of the defendant Robert McClement at his super market store. Defendant Omar W. Minton, Jr., was by trade a coal miner. Plaintiff claims that these men were partners throughout the entire period it sold the merchandise including the merchandise being sued for by it in this suit.

The transactions concerning the parties involved three oil and gas leases, all of which were worked in the year 1955. The first lease was known as the Palek lease, and operations thereunder were started in February, 1955. About 2 months later, operations were started under the second lease, known as the Ziba, or Zemba, lease, and operations under that lease were completed in June of 1955. These two leases covered farms in Washington County. Operations under the third lease, the one which is of main concern in this litigation, were started in October of 1955, 2 or 3 months after completion of operations under the prior lease. This last lease is referred to as the Belle Dial lease and covered a farm in Hamilton County. While plaintiff sold and delivered merchandise and supplies under all three leases, it was stipulated by the parties at the trial, and the evidence showed, that the suit was brought for the equipment and supplies sold for operations under the Belle Dial lease, with the exception of several small items amounting to $65.56 sold under the Palek lease.

All three of the leases were originally procured by Omar Minton, Sr. but, because of judgments against him, he took the leases in the name of his son, Omar W. Minton, Jr. Fractional interests in the various leases were sold by Omar Minton, Sr. to raise money for the drilling of the wells, and assignments were made by the son to the parties purchasing the various interests so sold.

In February of 1955, the defendant Robert McClement, together with Omar Minton, Sr., went to the plaintiff's store at Salem, Illinois and there they talked with a F.H. Rudrauff, plaintiff's district manager. This was the first time there were any negotiations for the equipment sold by the plaintiff. Both parties gave a credit reference to Rudrauff; the defendant McClement giving as his credit reference his bank at West Frankfort. The Salem store received approval from the home office for credit on equipment to be sold. Thereafter, equipment was ordered, mostly by one Jean Tober, the operator. At the time of the original conversations in plaintiff's store, the only well being developed was the well on the Palek lease. At the request of McClement and Minton, Sr., the account at the store was set up in the name of Omar W. Minton, Jr. and thereafter the account continued under that name and style. From February, 1955 on, the plaintiff, through its Salem store, sold a large amount of oil equipment for the Palek well. Most of it was sold in February though some items were sold as late as July and one or two items even after that date. This merchandise was fully paid for with the exception of 2 or 3 minor items as noted before. The equipment for the Ziba well (second lease) was sold commencing in April and running into June of 1955. The equipment on the Ziba lease was duly paid for by Omar Minton, Sr.

Plaintiff contends that the trial court's judgment in its favor against defendant Robert McClement in the amount of only $80.31 is against the manifest weight of the evidence. The theory is based on three contentions:

1. That defendant Robert McClement is liable as a business partner of Omar Minton, Sr.

2. That he is liable as a mining partner of Omar Minton, Sr.

3. That he is liable under the doctrine of estoppel.

The plaintiff prays that, since there was no jury trial and there was no dispute as to the amount due, this court should reverse the trial court without remanding and that we should enter judgment in its favor against the defendant Robert McClement in the amount of $7,095.34; the same as was entered against Omar W. Minton, Jr. by the trial court.

The equipment on the Belle Dial lease was sold over a period of time commencing on September 29, 1955 and running through December of that year. After the account became delinquent, a note was executed on November 23, 1956 in the sum of $5,375.25, payable to the plaintiff. The note was executed by Omar Minton, Sr., but he signed his son's name. The original complaint filed in July of 1958 was a suit on that note and was filed by plaintiff against Omar W. Minton, Jr. only. The father, Omar Minton, Sr., died in September of 1957 and plaintiff filed a claim, dated October 22, 1957, against his estate for the sum of $5,375.25, based on the promissory note of November 23, 1956. In October of 1958, plaintiff, by leave of court, filed an amendment to the complaint, adding Count II, in which a judgment was sought against Robert McClement as well as against Omar W. Minton, Jr. for the merchandise sold by plaintiff.

In the Palek lease, the defendant Robert McClement had a 59/512 interest. Omar Minton, Sr. had a slightly larger interest. Omar W. Minton, Jr. had a 1/64. In the Ziba lease, defendant Robert McClement and Omar Minton, Sr. each had a 11/128 interest. Again, Minton, Jr. had a 1/64. In the Belle Dial lease, defendant Robert McClement and Omar Minton, Sr. each had a 45/512 and Minton, Jr. had a 1/64. The Belle Dial lease assignment to defendant Robert McClement was executed on November 23, 1955.

Plaintiff argues that there existed a business partnership between McClement, Minton, Sr. and Minton, Jr.; that they "pooled their talents to get oil production for themselves"; that they "joined together to carry on a venture for their common benefit, each contributing services and having a community of interest in the profits." Plaintiff says that defendant McClement gave names to Minton, Sr. for prospective purchasers of fractional interests to raise money to drill the wells; that Minton, Jr. made the assignments; that they were on the locations at various times during the drilling; that McClement used his experience in directing the completion of the well; that Minton, Jr. handled the money; that Minton, Sr. looked after the operation of the wells; that all received oil runs from ...


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