Smith v. Cornwell & Chowning Lbr. Co.

This action was commenced by defendant in error against Mary S. Smith and W.S. Smith upon an account for lumber and building material furnished by the plaintiff in error and used in the construction of a garage on the property owned by Mary S. Smith, and for a foreclosure of materialman's lien upon said property. Judgment was rendered by default against defendant W.S. Smith for the full amount sued for, and judgment was rendered against defendant Mary S. Smith for $400 interest and costs, and foreclosing a lien on the real estate belonging to Mrs. Smith. From this judgment Mrs. Smith has appealed. The parties will be hereinafter referred to as plaintiff and defendant, as they appeared in the trial court.

Defendant contends that the court erred in overruling her demurrer to plaintiff's evidence. It is unnecessary to consider this assignment, as testimony was offered by the defendant and the verdict of the jury and judgment rendered thereon were based upon the entire evidence, and if there was sufficient evidence introduced to make out a case for the plaintiff, considering the entire evidence, the case will not be reversed because of error in overruling a demurrer to plaintiff's evidence. Meyer v. White, 27 Okla. 400. 112 P. 1005.

The defendant next contends that the court erred in giving instruction No. 6. This instruction taken in connection with instructions 7 and 8, correctly states the law applicable to the instant case in accordance with the law anounced in Mounts v. Boardman Co., 79 Okla. 90. 191 P. 362, and it is our opinion that the defendant's objections to instruction 6 are untenable.

It is next contended that the court erred in refusing to direct a verdict for the defendant. It is the contention of the defendant that the material was sold to W.S. Smith, the husband of Mary S. Smith, and that Mrs. Smith did not authorize the purchase of the material: and it is further contended that the facts in the case are insufficient to establish the relation of principal and agent between W.S. Smith and Mary S. Smith in regard to this transaction; that W.S. Smith did not hold himself out as the agent of Mary S. Smith, and the plaintiff dealt with him as a principal instead of an agent. In Mounts v. Boardman Co., supra, the court said:

"For most purposes the contract of an agent, who deals in his own name without disclosing that of his principal, is the contract of the principal, and when discovered, the principal may be held liable, as a general rule, unless it clearly appears that the contracting party intended to give exclusive credit to the agent."

Applying that rule to the instant case, Mary S. Smith was liable for the material furnished if her husband was acting as her agent, even though he dealt in his own name, without disclosing that of his principal, unless the plaintiff intended to give exclusive credit to W.S. Smith. This question and the question of the agency of W.S. Smith were submitted to the jury under proper instructions, and an examination of the evidence discloses that there is evidence reasonably tending to support the verdict of the jury. Such being the case, the verdict of the jury will not be disturbed on appeal.

It is our opinion that the judgment of the trial court should be affirmed, and it is so ordered.

JOHNSON, C. J., and KENNAMER, NICHOLSON, BRANSON, and HARRISON. JJ., concur.