Frank H. Harrah & Co. v. First Nat. Bank of Tonkawa , 26 Okla. 620 ( 1910 )

The only question essential for determination is as to the motion for a directed verdict in favor of the plaintiff. There is no evidence reasonably tending to show any agency of F. S. Stewart or the Tonkawa Commission Company, or of any authority given by the plaintiff to make the draft in question. The uncontroverted evidence was that Stewart went to Tonkawa and opened up the business of the Tonkawa Commission Company for himself, he to pay a monthly rental and one-fifth of the commission for the use of plaintiff's wire; that plaintiff and the Tonkawa Commission Company were separate and independent, F. S. Stewart alone constituting the Tonkawa Commission Company. Two accounts were kept at the bank; one of Harrah Co. being moneys deposited by F. S. Stewart for it, and the other, the Tonkawa Commission Company, having been created by moneys deposited by Stewart. Stewart neither exercised any control whatever over the former, nor the plaintiff over the latter; Stewart exclusively controlling the latter account, and the plaintiff the former. Stewart had drawn only one draft for $84.25 on plaintiff prior to this transaction, having been specially authorized thereto, which was honored, being a usual transaction, not necessarily indicative of agency. No checks were ever drawn by Stewart on the account of plaintiff. That rebuts the idea of agency. Under this record, the plaintiff should have recovered, and the lower court erred in not directing a verdict in its favor. Stock Exch. Bank v.Williamson, 6 Okla. 348, 50 P. 93.

The judgment of the lower court is reversed and remanded, with instructions to grant a new trial and proceed in accordance with this opinion.

All the Justices concur.