The opinion of the court was delivered by: John E. Miller, District Judge.
On August 27, 1957, this case was tried to the Court without a
jury, and at the conclusion of the trial the Court took the case
under advisement pending receipt of briefs from the parties. The
briefs have been received and the Court, having considered the
pleadings, evidence, and briefs of the parties, now makes and
files herein its Findings of Fact and Conclusions of Law,
The plaintiff is a citizen of Oklahoma and resides in Oklahoma
City. The defendant, Florene Vivian Johnson, is a citizen of the
State of Arkansas and resides in the City of Fort Smith. The
defendant, Clyde H. Johnson, at the time this action was
commenced was a citizen of the State of Arkansas and was residing
in the City of Fort Smith. The amount in controversy, exclusive
of interest and costs, exceeds the sum of $3,000.
In view of the nature of this case the Court is of the opinion
that it should first set out the pertinent facts in chronological
order, and in so doing the defendant, Florene Vivian Johnson,
will be referred to as Florene and the plaintiff, Alice Johnson,
will be referred to as Alice or plaintiff.
(a) The defendants, Florene and Clyde H. Johnson, met in 1933
in their home town of Lebanon, Missouri, and dated each other for
a period of approximately three years. In 1936 they were married
when Florene was 19 years of age and Clyde H. Johnson was 25.
(b) The plaintiff, Alice, who had previously been married and
divorced, was married to H.C. Gates in St. Louis, Missouri, in
1942. Before marrying Gates plaintiff had worked as a waitress.
Plaintiff is now 53 years of age.
(c) Plaintiff's husband, H.C. Gates, died in 1952, leaving the
plaintiff an estate of approximately $50,000 in insurance, cash,
and securities. Subsequent to Gates' death plaintiff lived with
her sister in Healdton, Oklahoma, where she worked as a cashier
in her sister's restaurant. During the same period of time the
defendants, Florene and Clyde H. Johnson, were living in
Chickasha, Oklahoma, where he was engaged in the wholesale
tobacco and candy business.
He told her that the uncle would not make the loan and
apparently they returned to Oklahoma. Before making this trip
Clyde H. Johnson had taken plaintiff by his home in Chickasha,
Oklahoma, and she had seen the inside of the house.
The following events set forth under (e) occurred in 1954:
(e) On January 2, plaintiff loaned Clyde H. Johnson the sum of
$9,226.86, which he was to use to build up his business. He
promised to pay her 2 percent interest, which was the same amount
she was getting at the bank.
On January 4, Clyde H. Johnson deposited $8,000 of this money
in the First National Bank of Alex, Oklahoma, retaining $1,226.80
On February 8, Clyde H. Johnson withdrew $2,000 in cash from
the First National Bank of Alex, Oklahoma.
In February or March, plaintiff first learned that Clyde H.
Johnson was a married man, but he told her that he and his wife
were not living together and he was getting a divorce.
On March 29, Clyde H. Johnson withdrew $6,000 in cash from the
First National Bank of Alex, Oklahoma.
On April 2, Clyde H. Johnson filed suit for divorce against
Florene in the Grady County District Court at Chickasha,
On July 17, Clyde H. Johnson obtained a divorce from Florene
and a property settlement was incorporated in the decree. Under
the property settlement Clyde H. Johnson received the home and a
GMC truck. Florene received all the furniture, a 1941 Chrysler
automobile, and $2,400 cash to be paid in monthly
On July 30, plaintiff loaned Clyde H. Johnson the sum of
In September, Florene moved to Fort Smith, Arkansas, where she
lived with her brother, Verdon Bennett.*fn2
On September 17, plaintiff loaned Clyde H. Johnson $9,000.
On October 15, Clyde H. Johnson deposited in his business
account in the Oklahoma National Bank at Chickasha, Oklahoma, the
sum of $16,724.51, of which amount $14,469 was in cash.
In December, Clyde H. Johnson paid Florene the sum of $2,000.
Apparently this was a payment on the $2,400 he owed her under the
Clyde H. Johnson induced plaintiff to convey to him her 1953
Chrysler automobile worth approximately $2,500. (Plaintiff
testified that this conveyance occurred in December of 1954.
Actually it may have occurred in December of 1955, since
plaintiff and Clyde H. Johnson were not married until July 13,
In 1955, the events herein set out in (f) occurred:
(f) During the year Florene was employed at a photo shop in
Fort Smith, Arkansas, at a salary of $35 per week.
On March 20, plaintiff loaned Clyde H. Johnson $1,400.
On July 13, plaintiff and Clyde H. Johnson were married.
On July 16, plaintiff loaned Clyde H. Johnson $6,000.
On July 18, Clyde H. Johnson deposited in his business account
in the Oklahoma National Bank the sum of $6,403.57, of which
amount $6,312.30 was in cash.
In October, plaintiff loaned Clyde H. Johnson $3,000.
Apparently this money was obtained by the sale of some stocks she
owned. The $3,000 was to be used by Clyde H. Johnson to purchase
furniture. It is not clear from the evidence what became of the
$3,000, since plaintiff testified that she accompanied Clyde H.
Johnson when the furniture was purchased and he paid for the
furniture by check.
The furniture purchased by Clyde H. Johnson included some
chairs, tables, mattress and springs, a maple dinette set, a
Mathes air conditioner, 27-inch TV set, vacuum cleaner, gas
range, Westinghouse laundromat, refrigerator, TV lamp, and a
On December 26, Clyde H. Johnson mailed a check to Florene ...