
    GOEHLER et ux. v. GROVE.
    No. 14954
    Opinion Filed Feb. 3. 1925.
    Rehearing Denied March 31, 1925.
    (Syllabus.)
    1. Oil and Gas — Cancellation of Lease— Judgment for Rescission and Return of Consideration.
    Plaintiffs having filed a suit for rescission and cancellation of an oil and gas lease on tbe ground, among others, that tbe parties bad never reached an agreement, and that tbe instrument was void, and defendant having admitted itbe allegation and prayed for judgment of return of-his money, final judgment canceling tbe lease as prayed by plaintiffs, and for the money paid in fav- or of tbe defendant against the plaintiffs, is without error.
    2. Appeal and Eri'or — Harmless Error — Instructions.
    Where a correct judgment under tbe pleadings is entered by the trial court, alleged erroneous failure of tbe trial court to fully instruct upon an issue submitted to tbe jury, becomes immaterial.
    Error from District Court, Tillman County; Thomas A. Edwards, Assigned Judge.
    Action by Geo. W. Goehler and wife against D. R. Grove. From tbe judgment plaintiffs bring error.
    Affirmed.
    Wilson & Roe, for plaintiffs in error.
    P. Mounts and W. H. Hussey, for defendant in error.
   BRANSON, V. C. J.

At all times herein mentioned, George W. Goehler and bis wife, Annie Lee Goehler, were the owners of a cejrtain ten acre tract of land located in Tillman county, Okla. It is disclosed by the pleadings of tbe plaintiffs that on February 18, 1920, they executed an oil and gas mining lease to the defendant herein, D. R. Grove; that said oil and gas mining lejase was placed of record on the following day. That on February 23, 1920, said landowners, as plaintiffs, filed this suit against the lessee as defendant. The parties will be referred to as they appeared in the trial court.

To support their cause of action for rescission, and $100,000 damages, plaintiffs pleaded that the execution of the instrument referred to as a lease was secured by defendant’s fraud; second, that when they executed the said instrument, it was orally agreed between them and the defendant that the defendant would ascertain thej exact time when he would commence drilling a well on tbe tract, would inform the plaintiffs of tbe date, and. insert tbe date upon the following day in tbe instrument executed on the 18tb. That be breached this part of bis oral agreement, and on tbe 21st of February placed tbe instrument of record. That there was therefore nejver a meeting of tbe minds of tbe parties as to tbe lease contract, ‘‘and no contract was ever completed, and said alleged lease contract is void and of no effect.”

Defendant answered plaintiffs’ pleadings, denying the fraud, but admitting tbe second ground pleaded for rescission and cancellation, and for affirmative relief in bis answer pleaded that he bad paid the plaintiffs $5,006, aud asked that be recover the sum against them.

On tbe trial of tbe cause, plaintiffs through counsel stated their case to the jury, by reading their pleadings, and nothing further. Whereupon, defendant, in tbe absence of the jury, filed a motion for judgment on tbe pleadings, and opening statement of counsel, to tbe effect that plaintiffs should recover to the extent of tbe cancellation of tbe alleged lease, and that defendant should recover against tbe plaintiffs tbe $5,000 paid them. The trial court overruled this motion. On bearing tbe evidence as to fraud, etc., and damages sustained by- plaintiffs, tbe jury returned a verdict denying plaintiffs any damage, and in favor of tbe defendant on bis prayer for affirmative relief in tbe sum of $5,000. Tbe trial court entered judgment canceling tbe lease and awarding tbe defendant a judgment against tbe plaintiffs for tbe $5,000 paid them.

Note. — See under (1) 27 Cyc. p. 693 (1926-Anno) ; (2) 4 C. J. p. 1052.

Tbe petition in error filed by tbe plaintiffs in tbis court assigns in effect, first, error in admitting evidence on tbe part of tbe defendant. Tbe Evidence admitted against wbicb tbis complaint is directed is that of one Testerman, wbo bad charge of an oil well being drilled near by tbe premises in question, and merely went to tbe effect that neither on instructions from bis superiors, nor on bis own volition, did be fail to- acquaint tbe plaintiff Goehler with any of the true facts touching tbe well being drilled under bis supervision, and that on Gobbler’s request be bad given him information about the depth of itbe well, etc. There is nothing in this evidence to sustain tbe assignment.

The petition in error further assigns tbe refusal to admit certain evidence of fraud on behalf of the plaintiffs. Tbis assignment is not discussed in tbe brief of the plaintiffs, and is therefore waived.

The nest assignment goes to an instruction given by tbe court on tbe right of tbe defendant to recover against tbe plaintiffs on that part of -bis answer praying affirmative relief. Thej record fails to disclose that any exception was taken by the plaintiffs to tbe instruction as given by tbe trial court, and no instructions were requested on this issue by tbe plaintiffs. Tbe assignments of error are not well taken.

Going further into the case as a whole, we feel that the judgment rendered in the case is one that should have been rendered on the motion for judgment on the pleadings and opening statement of counsel. Plaintiffs, as one of their grounds for rescission and cancellation, charge that there was in, effect no contract, as the parties bad never reached an agreement. This the defendant conceded, and asked that the $5,000 paid them be returned. Under this state of the record, irrespective of our finding as to the judgment rendered after verdict of a jury, we think that the judgment of the trial court is correct

In the case of Kibby v. Binion, Sheriff, et al., 70 Okla. 96, 172 Pac. 1091, this court said in effect that where a proper final judgment is entered, it is immaterial as to wheth-ed it is predicated upon erroneous findings of fact, or misinterpretations of law. City of Tulsa et al. v. Thomas et al., 89 Okla. 188, 214 Pac. 1070.

Tbe judgment of tbe trial court is affirmed.

NICHOLSON, O. J., and HARRISON, MASON, PHELPS, LESTER, HUNT, CLARK, and RILEY, JJ., concur.  