Chambers v. Van Wagner

• Decision Date: 14 May 1912
• Docket Number: Case Number: 1689
• Parties: CHAMBERS v. VAN WAGNER.
• Court: Oklahoma Supreme Court

1912 OK 334

123 P. 1117

32 Okla. 774

CHAMBERS v. VAN WAGNER.

Case Number: 1689

Supreme Court of Oklahoma

Decided: May 14, 1912

Syllabus

¶0 1. PLEADING--Pleading and Proof--Variance. "It is a general rule in actions at law that, in order to enable plaintiff to recover or defendant to succeed in his defense, what is proved or that of which proof is offered by the party on whom lies the onus probandi must not vary from what he has previously alleged in his pleadings; and this is not a mere arbitrary rule, but is one founded on good sense and good law." 22 Pl. & Pr. 527.

2. SAME -- Trial -- Instructions -- Pleadings to Support. It is error to admit testimony in support of facts not put in issue by the pleadings, and, as a logical corollary, it is error to instruct the jury upon issues not raised by the pleadings.

Error from District Court, Woods County; R. H. Foofbourrow, Judge.

Action by Fred Van Wagner against T. S. Chambers. Judgment for plaintiff, and defendant brings error. Reversed and remanded.

T. J. Womack and Dale, Bierer & Hegler, for plaintiff in error.

HARRISON, C.

¶1 This action was begun in the court below by Fred Van Wagner against T. S. Chambers to recover the sum of $ 255.80 alleged to be due plaintiff from defendant as commissions for buying certain tracts of land. The petition alleged that said amount was due him by reason of a contract entered into between plaintiff and one John B. Linden, a duly authorized agent of, and acting for, defendant; that the contract with Linden was that plaintiff purchase certain tracts of land for defendant, Chambers; that pursuant to such contract, and acting under authority of same, he purchased the land in question, and, in fact, had done all things required of him to be done by virtue of said contract, and that there was yet due and unpaid to him as commissions on said contract the sum of $ 255.80. Wherefore he asked judgment.

¶2 Defendant answered, denying all the material allegations in the petition, denying specifically that the said John B. Linden was authorized in any manner to make the contract alleged in plaintiff's petition, and denying that the said John B. Linden was the agent of defendant in the purchase of said land, and that he was the defendant's agent for any purpose. The cause was tried May, 1909, resulting in a verdict in favor of plaintiff in the sum of $ 200. Motion for new trial being overruled and judgment being rendered on said verdict, Chambers, the plaintiff in error, appeals to this court, assigning prejudicial error in the court's instruction and in the admission and rejection of testimony, and overruling plaintiff in error's motion for a new trial. The instruction complained of is as follows:

"No. 2. You are further instructed that there is no evidence in this case tending to show that the alleged agency ever existed between the said John B. Linden and the said T. S. Chambers, and you will eliminate that feature from this case in arriving at your verdict. You are instructed that while the evidence does not disclose any agency to have existed between Linden and Chambers, and if Linden did act, that he did so without authority in relation to this transaction, still if you believe from the evidence that the plaintiff, Van Wagner, did make the contract and secure the purchase and sale of the lands in controversy for the defendant, Chambers, as alleged and claimed by the plaintiff, and that the defendant Chambers had full knowledge of what the plaintiff had done and was doing toward the completion of the deal, and Chambers ratified the bargain so made, then the contract will be as binding upon the defendant as if he had authorized Van Wagner to make the bargain in the first instance; and if you find from a preponderance of the evidence that plaintiff Van Wagner, with the knowledge, advice, and consent of the defendant made the purchases of the lands for the defendant, then the plaintiff is entitled to recover from the defendant the reasonable value of the services so rendered, and in arriving at

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