WILLIAMS, Circuit Judge.
The partnership of Simon and Mclnnis may be hereafter referred to as “Simon,” and Harold L. Simon, as administrator of the estate of L. G. Simon, deceased, as “appellant,” and H. F. Wilcox Oil & Gas Company as “Wilcox.”
As to the first cause of action, appellant accepts the trial court’s findings of fact,1 [27]*27not presenting here evidence other than as appears from the face of the contract,2 pleadings, and facts as found, and insists that reversible error is apparent.
The record contains the evidence relative to the sale and purchase by Wilcox.
Only questions as to the First and Fourth causes of action are presented on this appeal.
Wilcox contends that the contract when construed from its four corners in the light of performance by the parties [28]*28thereto discloses a sale made by Simon to Wilcox of an undivided one-half interest in said lease, with a completed well and oil therefrom of the value of $100,000 at a price provided for in the contract, for a consideration of $100,000 of par value Class A Preferred stock of Wilcox. The word “advance” in Paragraph 3 as used in connection with other provisions reasonably means in light of context and conditions then existing and surrounding circumstances and acts of all parties in its mutual performance that Wilcox as purchaser is to furnish said preferred stock in stipulated parts as a consideration therefor, said purchaser to own an undivided one-half interest in the rig, all casing, material, appliances, and other equipment in the well or used in connection therewith, except the drilling tools and the oil as stipulated to be received by purchaser, the vendor (Simon) and purchaser (Wilcox) [29]*29each to own an undivided one-half interest in the said lease and divide the operating expenses equally, this being pertinent as the said oil to be received by the purchaser (Wilcox) was to come from the entire working interest, except the one-fourth theretofore retained by and to go to Glenn J. Smith. Thereafter each party to the contract was to receive oil in proportion to his interest in the lease and hear his proportionate share of the operating expense. As the Wilcox oil was being delivered, the operating expenses were by agreement deducted from the value of all the oil and the remainder credited as a delivery to Wilcox. Paragraphs 7 and 8 cover contingencies that might arise occasioned by delay in the completion of the [30]*30well and preferred stock not being issued as contemplated, and that the sale should be so perfected between vendor and purchaser.
No question is raised in the issues as to the unreasonableness of the contract.
• Parol evidence was admitted to assist in its interpretation. One of the original parties, Simon, being dead, Mclnnis, surviving partner, testified in detail to the circumstances surrounding its making, and that both he and the deceased Simon understood that the contract was one of sale and that they were selling a one-half interest in the lease, with a completed well, including $100,000 of oil to be produced therefrom, subject to Glenn J. Smith lessee’s interest, and that they neither intended or expected to procure a loan from Wilcox nor approached Wilcox for a loan, and that prior to the trial he sold his undivided one-fourth interest to Wilcox.
Evidence on part of Wilcox, through Dye, its Vice-President, at time of making the contract, was that Wilcox did not make a loan but bought an undivided one-half interest in and to the lease and working interest and an exclusive ownership of $100,000 in oil, and had always so claimed, and that such ownership was set up as the property of Wilcox on its books. Non? of these witnesses hád any connection with Wilcox at the time of the trial.
The pleadings as introduced in evidence, verified by the deceased Simon, contain statements that by the contract Wilcox bought a one-half interest in said lease, and that said L. G. Simon was the owner of a one-fourth interest therein.
The contention here of appellant is opposite to what the parties mutually intended and understood the contract to be at the time it was entered into.
Mclnnis and Dye, the Vice-President of Wilcox, who testified, were both before the court, who had opportunity to weigh their evidence and capabilities.
The verified statements of L. G. Simon in the pleadings made by him whilst living harmonize with the interpretation placed upon the contract by said Mclnnis and Dye.
This contract, made and to be performed in Oklahoma, its interpretation is to be determined by the laws of that state. Brown v. Ford Motor Co., 10 Cir., 48 F.2d 732.
The practical interpretation of an agreement by a party is a consideration of great weight. Commercial Standard Ins. Co. v. Remer, 10 Cir., 119 F.2d 66; Brooklyn Life Ins. Co. v. Dutcher, 95 U.S. 269, 24 L.Ed. 410.
The whole of a contract is to be taken together so as to give effect to every part of same if reasonably practicable,3 and be so interpreted as to give effect to the mutual intention of the parties as it existed at the time of contracting so far as the same is reasonably ascertainable and 'lawful.4
In construing an ambiguous instrument, the court should place itself as far as reasonably possible in the position of the parties when the contract was entered into, and consider same as drawn and its purposes. American Nat. Bank v. Hensley, 170 Okl. 109, 39 P.2d 34.
The contract was performed on the theory that it was a sale and purchase agreement by which Wilcox had acquired a one-half interest in the lease, with a well to be developed, and to receive $100,000 in oil as measured in the contract.
The trial court so found and also found that the transaction was not a loan. Its findings are based upon substantial evidence.
Simon needed a string of casing in the drilling of the well, the cost value of which was $8,000, and which was procured for him by Wilcox. Simon executed a note to Wilcox for said $8,000 and put up $15,000 of par value Class A Preferred stock of Wilcox to secure same. When the note fell due, Simon failed to pay same, which was extended twice by renewal, and after continued default in payment, Wilcox proceeded to sell the pledged collateral. L. G. Simon was absent from the state and his address was unknown and not available to Wilcox. Notices of the sale were posted, as required by the laws of Oklahoma, and a notice deposited in the postoffice, addressed to L. G. Simon in care of his brother. The note provided that Wilcox “ * * * if the highest bidder therefor, [31]*31whether at public or private sale, is expressly authorized and permitted to become the purchaser of said collaterals or any part thereof at any such sale or sales; * * */>
The sole contention of appellant is that the disposition and purchase of this stock by Wilcox at such sale violated the public policy of the state of Oklahoma. Appellant conceded that it was a public sale under such notice as the law required.
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WILLIAMS, Circuit Judge.
The partnership of Simon and Mclnnis may be hereafter referred to as “Simon,” and Harold L. Simon, as administrator of the estate of L. G. Simon, deceased, as “appellant,” and H. F. Wilcox Oil & Gas Company as “Wilcox.”
As to the first cause of action, appellant accepts the trial court’s findings of fact,1 [27]*27not presenting here evidence other than as appears from the face of the contract,2 pleadings, and facts as found, and insists that reversible error is apparent.
The record contains the evidence relative to the sale and purchase by Wilcox.
Only questions as to the First and Fourth causes of action are presented on this appeal.
Wilcox contends that the contract when construed from its four corners in the light of performance by the parties [28]*28thereto discloses a sale made by Simon to Wilcox of an undivided one-half interest in said lease, with a completed well and oil therefrom of the value of $100,000 at a price provided for in the contract, for a consideration of $100,000 of par value Class A Preferred stock of Wilcox. The word “advance” in Paragraph 3 as used in connection with other provisions reasonably means in light of context and conditions then existing and surrounding circumstances and acts of all parties in its mutual performance that Wilcox as purchaser is to furnish said preferred stock in stipulated parts as a consideration therefor, said purchaser to own an undivided one-half interest in the rig, all casing, material, appliances, and other equipment in the well or used in connection therewith, except the drilling tools and the oil as stipulated to be received by purchaser, the vendor (Simon) and purchaser (Wilcox) [29]*29each to own an undivided one-half interest in the said lease and divide the operating expenses equally, this being pertinent as the said oil to be received by the purchaser (Wilcox) was to come from the entire working interest, except the one-fourth theretofore retained by and to go to Glenn J. Smith. Thereafter each party to the contract was to receive oil in proportion to his interest in the lease and hear his proportionate share of the operating expense. As the Wilcox oil was being delivered, the operating expenses were by agreement deducted from the value of all the oil and the remainder credited as a delivery to Wilcox. Paragraphs 7 and 8 cover contingencies that might arise occasioned by delay in the completion of the [30]*30well and preferred stock not being issued as contemplated, and that the sale should be so perfected between vendor and purchaser.
No question is raised in the issues as to the unreasonableness of the contract.
• Parol evidence was admitted to assist in its interpretation. One of the original parties, Simon, being dead, Mclnnis, surviving partner, testified in detail to the circumstances surrounding its making, and that both he and the deceased Simon understood that the contract was one of sale and that they were selling a one-half interest in the lease, with a completed well, including $100,000 of oil to be produced therefrom, subject to Glenn J. Smith lessee’s interest, and that they neither intended or expected to procure a loan from Wilcox nor approached Wilcox for a loan, and that prior to the trial he sold his undivided one-fourth interest to Wilcox.
Evidence on part of Wilcox, through Dye, its Vice-President, at time of making the contract, was that Wilcox did not make a loan but bought an undivided one-half interest in and to the lease and working interest and an exclusive ownership of $100,000 in oil, and had always so claimed, and that such ownership was set up as the property of Wilcox on its books. Non? of these witnesses hád any connection with Wilcox at the time of the trial.
The pleadings as introduced in evidence, verified by the deceased Simon, contain statements that by the contract Wilcox bought a one-half interest in said lease, and that said L. G. Simon was the owner of a one-fourth interest therein.
The contention here of appellant is opposite to what the parties mutually intended and understood the contract to be at the time it was entered into.
Mclnnis and Dye, the Vice-President of Wilcox, who testified, were both before the court, who had opportunity to weigh their evidence and capabilities.
The verified statements of L. G. Simon in the pleadings made by him whilst living harmonize with the interpretation placed upon the contract by said Mclnnis and Dye.
This contract, made and to be performed in Oklahoma, its interpretation is to be determined by the laws of that state. Brown v. Ford Motor Co., 10 Cir., 48 F.2d 732.
The practical interpretation of an agreement by a party is a consideration of great weight. Commercial Standard Ins. Co. v. Remer, 10 Cir., 119 F.2d 66; Brooklyn Life Ins. Co. v. Dutcher, 95 U.S. 269, 24 L.Ed. 410.
The whole of a contract is to be taken together so as to give effect to every part of same if reasonably practicable,3 and be so interpreted as to give effect to the mutual intention of the parties as it existed at the time of contracting so far as the same is reasonably ascertainable and 'lawful.4
In construing an ambiguous instrument, the court should place itself as far as reasonably possible in the position of the parties when the contract was entered into, and consider same as drawn and its purposes. American Nat. Bank v. Hensley, 170 Okl. 109, 39 P.2d 34.
The contract was performed on the theory that it was a sale and purchase agreement by which Wilcox had acquired a one-half interest in the lease, with a well to be developed, and to receive $100,000 in oil as measured in the contract.
The trial court so found and also found that the transaction was not a loan. Its findings are based upon substantial evidence.
Simon needed a string of casing in the drilling of the well, the cost value of which was $8,000, and which was procured for him by Wilcox. Simon executed a note to Wilcox for said $8,000 and put up $15,000 of par value Class A Preferred stock of Wilcox to secure same. When the note fell due, Simon failed to pay same, which was extended twice by renewal, and after continued default in payment, Wilcox proceeded to sell the pledged collateral. L. G. Simon was absent from the state and his address was unknown and not available to Wilcox. Notices of the sale were posted, as required by the laws of Oklahoma, and a notice deposited in the postoffice, addressed to L. G. Simon in care of his brother. The note provided that Wilcox “ * * * if the highest bidder therefor, [31]*31whether at public or private sale, is expressly authorized and permitted to become the purchaser of said collaterals or any part thereof at any such sale or sales; * * */>
The sole contention of appellant is that the disposition and purchase of this stock by Wilcox at such sale violated the public policy of the state of Oklahoma. Appellant conceded that it was a public sale under such notice as the law required.
A pledgee or pledgeholder may purchase the property pledged by direct dealing with the pledgor in good faith.5
A pledgee may foreclose the right of redemption by judicial sale under the direction of a competent court, and in that case he may be authorized by the court to purchase at the sale.6
Sale by pledgee of property pledged must be at public auction in the manner and upon the notice to the public usual at the place of sale in respect to auction sales of similar property and be for the highest obtainable price.7
In Ardmore State Bank v. Mason, 30 Okl. 568, 120 P. 1080, 1084, 39 L.R.A.,N.S., 292, it was held that had McLish, a stockholder of an Oklahoma state bank “at the time he made the pledge of stock been indebted to the issuing bank, he would have had no right to, nor could he have waived such notice to the detriment of the issuing bank, and the lien created by statute against the stockholder in favor of the hank would have been sufficient to protect the bank as against the pledgee,” but he was not indebted to the bank and waiver of such notice was sustained.
However, appellant contends that such waiver may take place only after default and when incorporated in the pledge contract is void.
Contracts are unlawful which are contrary to an express provision of law or the policy of express law.8
Notice of sale may he waived by pledgor at any time but is not waived by a mere waiver of demand of performance.9
Appellant does not question the regularity of the sale proceedings, if any one other than Wilcox had purchased at such sale.10
The Oklahoma statutes herein cited were borrowed by Oklahoma from the Dakota Territory Code, which were carried forward by the legislature of the state of North Dakota into its Code and construed by its Supreme Court in Reeves & Co. v. Bruening, 16 N.D. 398, 114 N.W. 313, 314, in which it is said: “ ‘Why should it be held that by this is meant that the pledgee or pledge holder can only purchase by taking a direct transfer from the pledgor? The statute does not say so, and the reason of the prohibition suggests the contrary. If the pledgor chooses to do so, we see no reason why he may not consent that the pledgee may buy at the public sale. In some cases it may be to his interest that this be done. Such consent may be given either at the time of making the pledge or at any subsequent time, without changing the form of the original contract and without consideration.’ Such we also understand to have been the general rule relating to foreclosure sales of pledged property, in the absence of a statute to the contrary. The rule is stated thus: ‘The law does not permit the pledgee to become a purchaser of the property pledged at his own sale. Such a purchase is contrary to the principle that forbids a party to purchase property when he has a duty to perform with reference to such property, which is inconsistent with the character of the purchaser.’ $ $ * »
See, also, 21 R.C.L. 694; 49 C.J. 1008; 76 A.L.R. 716.
[32]*32Burke v. Tarrant Inv. Co., 166 Okl. 179, 26 P.2d 949, in light of its syllabus, is in harmony- with the conclusion here reached.
- The renewal note which was a second renewal was dated March 18, 1932, to which was attached the Class A Preferred stock of Wilcox, the sale of which is in question, and which contained the clause heretofore set out.
Under the Oklahoma statute, “every person having an interest in property subject to a lien, has a right to redeem it from the lien, at any time after the claim is due, and before his right of redemption is foreclosed.” 11
The court found that “the sale was made after due notice was mailed to L. G. Simon at his last known postoffice address in Tulsa, Oklahoma, and was posted in Tulsa, Oklahoma in accordance with the laws of the state of Oklahoma, and that the whereabouts of said L. G. Simon could not be ascertained, but actual notice of said sale was given to Charles N. Simon, the legal representative of L. G. Simon, ’prior to said foreclosure sale of said stock, and that such notice was in compliance with law; that the sale of said stock to pledgee was for an adequate consideration, and that the foreclosure proceedings relative to the sale of 'said stock was valid, and that said transaction was inclusive and vested good title to said stock in H. F. Wilcox Oil & Gas Company.” Said findings were sustained by substantial evidence. Guilford Const. Co. v. Biggs, 4 Cir., 102 F.2d 46.
The judgment of the lower court is affirmed.