Schowalter v. Beard , 10 Okla. 454 ( 1900 )

Opinion of the court by

IewiN, J.:

It is first contended by plaintiffs in error that defendant in error, who was plaintiff in the court below, is not suing to enforce a contract to purchase a one half interest in the brick wall, but is suing for a penalty provided in the bond, and this being true, he must allege and proye special damages, by reason of tbe breach of tbe contract, and cite. authorities to sustain this petition. But we think the trouble with the position of plaintiffs in error is they mistake the petition. We think it is plainly a petition seeking to recover under the contract for one half the actual expenses of building the wall, and as such it would be only necessary to allege and prove the completion of the wall, the actual cost of the same, and the tender of the deed.

Another defense urged is that the obligation is joint, and that all the obligors should be made parties defendant. We think sec. 851, page 219 Oklahoma Statutes of 1893, settles this proposition, as all the obligors on this agreement were parties who received some benefit, and the statute above cited makes all such contracts, presumably, joint and several, and the proof shows that all these defendants were owners of, or parties interested in lot 18, on which the wall was partly to be erected. Another defense urged is that the partition wall was more than half on lot 18, and, consequently, was not built strictly in acordance with the contract. But it is alleged that this was done by and with the consent of the defendants, and some evidence was introduced to sustain this claim; and it.seems to us, to make this defense available, the defendants should have alleged and proved that they were damaged in some way by this departure from the contract. This question was before the court, and we think the evidence tends to sustain his findings in this particular, and this being true, his rulings will not be disturbed.

We have examined the record, and failing to find any error of the trial court, and believing that substantial justice has been done, the decision of the district court is affirmed.

All of the Justices concurring.