Bain v. Wolfenbarger

Four propositions are urged by the defendant for a reversal of this case, but each of the four propositions goes to the sufficiency of the evidence to sustain the verdict and judgment. It will, therefore, not be necessary to discuss these propositions separately but a determination as to the sufficiency or insufficiency of the evidence to support the verdict will dispose of all the propositions raised in defendant's brief. What is considered a fair abstract of the testimony shown in the record may be stated thus:

On or about February 23, 1920, defendant, J.D. Bain, came from his home in Kansas to Newkirk, Okla., en route to some point in the state of Texas; he visited relatives in Newkirk and during such visit expressed a wish to sell the lands described in plaintiff's petition in this action; that his nephew, Geo. E Bain, suggested to him that the plaintiff, Harry Wolfenbarger, was a good man to handle the sale of the property; that he authorized his sister-in-law to advertise said land for sale in the local paper for a price of $16,000; that on the day of his departure from Newkirk, and while going to the station to catch his train, he met the plaintiff Harry Wolfenbarger, and had a conversation with him; Wolfenbarger testified that defendant then employed and authorized him to sell the lands for the price of $16,000 net to the defendant; this is denied by the defendant; thereafter plaintiff, Wolfenbarger, entered into a written contract with one W.E. Tucker, in which contract said Tucker agreed and bound himself to purchase said lands for a price of $18,000 as soon as deed could be prepared and abstract of title approved; that plaintiff was to have 60 days within which to procure a deed and abstract; that said contract was entered into by plaintiff as agent of defendant, J.D. Bain, as shown in the face of said contract, and that said contract together with the sum of $2,000 paid on the purchase price by Tucker were placed in escrow in the bank at Kaw City; that the purchaser was able, ready, and willing to carry out the terms of this contract; that after considerable effort and delay plaintiff located the defendant, Bain, and advised him that he had procured a purchaser for the property, and requested him to execute and prepare deed and furnish abstract so that the transaction might be closed within the 60 days provided in the contract; that defendant failed and refused to execute a deed or to convey the property under said contract; that he wrote the purchaser, Tucker, offering to sell him the land for $17,000; that after defendant failed and expressly refused to convey said property, the purchaser, Tucker, on the 60th day after the contract was entered into drew down the $2,000 which he had deposited in escrow and the deal was off; on this same day, but after the money had been taken down, Bain went to Kaw City for the purpose of executing the deed; that after it became apparent that defendant would not convey the property this action was commenced by the plaintiff; there was testimony in the case also which showed certain admissions by the defendant in conversations, which tended to contradict his denial of plaintiff's agency and to corroborate the testimony of the plaintiff as to the details of the conversation between the two at the time plaintiff claimed the land was placed with him for sale.

The allegations of plaintiff's amended petition stated a cause of action and the ruling of the trial court upon the objection to the introduction of any testimony was correct. Thompson v. DeLong, 40 Okla. 718, 140 P. 421; Deming Inv. Co. v. Britton, 72 Okla. 144, 179 P. 468.

There is ample testimony in the record to go to the jury upon the question of plaintiff's authority to act as the agent of the defendant, and the action of the trial court in overruling the demurrer to the evidence was proper.

Upon the entire evidence in the case there was a conflict as to the plaintiff's authority, and, since it was the sole province of the jury to pass upon the fact of the agency under the conflicting testimony, it was not error for the trial court to refuse defendant's request for a directed verdict.

Upon a consideration of the whole case it is considered that no substantial error prejudicial to the rights of the defendant was committed by the trial court in this case, and that the evidence in the record, while in conflict, is sufficient to sustain the verdict and the judgment based thereon. Thompson v. DeLong, supra; Childers v. Moore, 57 Okla. 640, 157 P. 333; Bleecker v. Miller, 40 Okla. 374, 138 P. 809; Smith et al. v. Autrey et al., 69 Okla. 28, 169 P. 623; Strickland v. Palmer,70 Okla. 212, 172 P. 932; Thornburg v. Haun, 79 Okla. 103,190 P. 1083; Rosenberg v. Olsan, 88 Okla. 252, 212 P. 746.

It is, therefore, concluded upon the whole record that the judgment of the trial court in this action was correct, and that the same should be in all things affirmed.

By the Court: It is so ordered.