Ward, Adm'r v. Ward, Adm'x , 197 Okla. 551 ( 1946 )

I am unable to agree with the majority of my associates upon the reversal of the present case. After studying the record I am convinced that the judgment of the trial court is not against the clear weight of the evidence.

B.E. and Barney Ward are one and the same person, and J.G. and Jay Ward are one and the same person.

The majority opinion cites a number of circumstances which taken by themselves would not prove that a partnership existed between B.E. Ward and J.G. Ward, after 1929. The majority opinion, however, has overlooked some of the vital circumstances in the case and in my opinion when these individual circumstances are considered as a whole a different picture appears. If we visualize each piece of evidence offered in the case as a single strand of rope, the rope would be very weak, and the judgment of the trial court in that event would be clearly against the weight of the evidence. However, when we place all of the strands together so as to see the full, complete and overall picture of the case, we find a very strong rope of circumstances which in my opinion should forbid the majority of my associates from saying that the judgment of the trial court was clearly against the weight of the evidence.

Before stating some of the evidence upon which the trial court based its judgment, I feel that I should make some observations relative to the majority opinion.

The majority opinion expresses doubt that there was ever an existing partnership between the two brothers, or that if such a partnership existed between them, it was terminated in 1929. Neither of these theories is correct. The testimony of S.H. Vance, vice-president and credit manager of the State National Bank of Texarkana, Ark., disproves both theories. This witness had known the two Ward brothers since Barney was a little boy and Jay was a baby. He had been connected with the bank in which the big bulk of the Ward brothers' banking had been transacted. His testimony is clear and convincing that Barney and Jay Ward were partners after they opened up their Ward Brothers' account in his bank in 1925. At that time both Barney and Jay were well over legal age and both were good traders. They were successful in their partnership and in 1929 they had accumulated considerable money and some property. They had several different accounts in the bank, but both partners had told the bank that whatever money was in the bank "belonged to both of them and whatever money they had in the bank, whichever account it might be in, to transfer it from one account to the other." The bank followed these instructions a number of times.

It is true that the selection and actual purchase of the ranch involved herein was wholly made by B.E. Ward, but the trial court found that it was purchased with Ward Brothers' money and for the use and benefit of the partnership.

In building the ranch in question a number of tracts of land were acquired. The first, largest, and by far the most expensive tract bought is referred to in the record as the Robertson Ranch. The contract for the purchase of this land was made in the fall of 1929 soon after Barney had married Blanche Ward, and deed covering same was executed in favor of B.E. Ward and Blanche Ward as grantees. At the time there was a Ward Brothers' checking account and a savings account in the Texarkana bank in the name of J.G. Ward. The balance in the savings account was approximately $20,000. The initial payment on this ranch was $2,000 and a few days after the check was given for such payment there was a $2,000 withdrawal from the Ward Brothers' account. The remaining $19,121.45 was paid from the savings account after a preliminary loan from the bank made at the suggestion of the banker, so that the partnership could realize on some interest that was about to accrue. At the time this loan was made both Barney and Jay informed the banker that they were buying a ranch in Oklahoma. Blanche Ward testified that she had paid the original $2,000, but on cross-examination it was rather convincing that she did not have any money at the time the payment was made.

Another tract of land acquired is referred to as the Thompson land. The purchase price of this land was $4,012.50. Of this sum $1,000 was paid by check signed by B.E. Ward. Thereafter $3,000 was paid by a Ward Brothers' check signed by J.G. Ward. The remaining $12.50 payment is unaccounted for. B.E. Ward was the grantee in this deed.

One hundred twenty acres known as the York land was purchased for $1,200; of this sum $130 was paid by check of Blanche Ward. The remaining $1,070 was paid in some unexplainable manner. However, the court costs used in procuring two approved deeds of Indian heirs were paid by Ward Brothers. The deeds were taken in the names of B.E. Ward and Blanche Ward.

Five acres known as the Short land was purchased by the brothers and paid for with partnership check signed by B.E. Ward.

Forty acres known as the Ridge land was paid for by B.E. Ward's check drawn against his account in the bank in Marietta. This deed shows the grantees to be B.E. Ward and J.G. Ward. It is conceded by the parties that the two tracts last mentioned were owned jointly by the partnership.

Much of the material used in improving the ranch came from Arkansas and was hauled in trucks belonging to the Ward Brothers partnership.

Other circumstances showing the partnership, and continuation thereof, may be pointed out as follows:

(A) Cattle shipped to Marietta to be fed on the ranch were usually shipped to Ward Brothers. There were 23 instances in which such shipments were made to B.E. Ward and 46 in which the shipments were to Ward Brothers. In the latter instances the shipments were commonly made by B.E. Ward. Cattle bought by him were shipped to Marietta in carload lots and during the year 1939, 25 cars of cattle had been shipped by B.E. Ward, as consignor, to Ward Brothers at Marietta, as consignee. These were the last cattle shipments made to the ranch and the shipments were made only a few months preceding the death of B.E. Ward.

(B) Incidents were proven to show that Barney Ward had mortgaged cattle in his own name. The cattle were sold by J.G. Ward in the name of Ward Brothers and checks made payable to Ward Brother

(C) The taxes covering the ranch were sometimes paid by checks of B.E. Ward and at other times by checks of Ward Brothers.

(D) During most of the years, taxes covering the Short and Ridge land which had been deeded to B.E. Ward and J.G. Ward were paid by check of B.E. Ward.

(E) Insurance covering the improvements on the land, including the Short land, was procured by B.E. Ward in his individual name and the premiums paid by him.

(F) There were no books of accounts between the partners disclosing any balances or any charges back and forth between the parties.

(G) A truck bearing the name of "Ward Brothers" was used to do hauling and this truck made many trips between the ranch and Arkansas and was frequently seen at the ranch.

(H) The partnership had business cards printed. The cards read as follows: "WARD BROTHERS Dealers in all classes of livestock, specializing in registered bulls, stocker pigs and stocker steers. See us before you buy or sell." The top of the left side of the card showed the name of J.G. Ward, Texarkana, and his telephone number. At the top of the right side thereof appeared the name of B.E. Ward, Marietta, and his telephone number. The record discloses that Barney gave out such cards in June, 1939, shortly prior to his death.

(I) A number of witnesses testified that in conversations with both Barney and Jay they referred to the ranch as being "our ranch".

(J) A number of witnesses testified that Barney referred to the ranch as "his and Jay's ranch".

(K) Other witnesses testified that Barney had stated to them that he and Jay were buying the ranch in Oklahoma.

It will be noted that when this case was finally tried, the lips of both Barney and Jay had been sealed by death. The court was compelled to determine the issues from the strands of available evidence. When these strands are knitted together they form a strong rope and the court evidently considered the over-all picture and not just individual circumstances.

In reversing the case my associates have substituted themselves in the position of the trial judge. The trial judge saw the witnesses, had the opportunity to observe their demeanor on the witness stand. He had the opportunity to determine their interest or lack of interest and to determine which witnesses to believe, and which ones not to believe. My associates have not had this privilege and, in my opinion, they are in error in saying that the judgment of the trial court is not supported by sufficient evidence to meet the test for proving a partnership and resulting trust.

The majority opinion, at least by innuendo, states that J.G. Ward was guilty of laches in that the deed conveying title in the names of B.E. Ward and Blanche Ward was immediately recorded in 1929 and that thereafter for ten years until his death he and Blanche Ward exclusively occupied the home ranch, holding themselves out as sole owners thereof. The record discloses that B.E. and Blanche Ward lived in Texarkana from 1929 until 1937, when they moved to the Marietta ranch. Blanche Ward so testified.

The brothers forming the partnership in question were both good traders; they were closely associated; Jay depended on Barney's honesty and Barney depended on Jay's integrity. They handled their partnership affairs, not as astute business men, but as brothers who were not possessed with the business acumen of a banker.

It is true that there is no direct evidence in the record as to the extent of interest in partnership property owned by each of the brothers. Under our statute the interest was presumably co-equal and each partner is entitled to share in the proceeds of the partnership property on that basis. 54 Ohio St. 1941 § 5[54-5].

From the over-all picture presented by the record, I am of the opinion that the judgment of the trial court should not be disturbed. In my opinion, the judgment is sufficiently supported by and is in accord with the evidence. I therefore respectfully dissent.

I am authorized to state that GIBSON, C.J., HURST, V.C.J., and OSBORN, J., concur in this dissent.