Gaar, Scott & Co. v. Rogers

• Decision Date: 20 April 1915
• Docket Number: Case Number: 4066
• Citation: 46 Okla. 67,1915 OK 190,148 P. 161
• Parties: GAAR, SCOTT & Co. v. ROGERS.
• Court: Oklahoma Supreme Court

1915 OK 190

148 P. 161

46 Okla. 67

GAAR, SCOTT & Co. v. ROGERS.

Case Number: 4066

Supreme Court of Oklahoma

Decided: April 20, 1915

Syllabus

¶0 1. PLEADING--Amendment--Effect. The effect of the original pleading is destroyed by the filing of an amended pleading, which is complete in itself, and does not refer to or adopt the original as a part of it.

2. APPEAL AND ERROR--Assignments of Error--Sufficiency--Rulings on Evidence. Assignment of error should point out the particular testimony admitted or rejected, to which objection is made. Specifications of error will not be considered unless they comply with rule 25 of this court (38 Pac. xi), which is as follows: Where the party complains on account of the admission or rejection of testimony, he shall set out in his brief the full substance of the testimony, to the admission or rejection of which he objects, stating specifically his objection thereto."

2. PRINCIPAL AND AGENT--Agency--Pleading--Presumption. A general allegation of an authorized agency, not denied under oath, will be presumed to be an agency with such power and authority as is charged in the pleading, and no further proof of the agent's authority will be required.

4. PRINCIPAL AND AGENT--Delegation of Authority--Right. The general rule of law is that an agent has no implied authority to delegate his powers to a clerk or subagent; and persons employed by him as clerk or subagent do not become the agent of the principal, without the principal's consent; and only upon extreme and unusual exigencies can an agent delegate his authority to a clerk or subagent to transact business for his principal, which requires special judgment, discretion, and experience, without the consent of the principal.

5. NOVATION--What Constitutes. Novation is the substitution, by mutual agreement, of one debtor or of one creditor for another, whereby the old debt is extinguished, or the substitution of a new debt or obligation for an existing one, which is thereby extinguished.

6. NOVATION--Agreement to Substitution--Necessity--Proof. In order to establish the fact of novation by the substitution of a new debtor, it must be shown by a clear preponderance of the evidence that the three parties agreed to such substitution; that the new debtor assumed and promised to pay the debt of the original debtor; and that the creditor accepted the new debtor and released and discharged the original one.

7. PRINCIPAL AND AGENT--Unauthorized Acts of Agent--Ratification--Knowledge. Ratification must be with full knowledge of all facts. In order that a ratification of an unauthorized act, or transaction of any agent may be valid and binding, it is essential that the principal have full knowledge, at the time of the ratification, of all the material facts relative to the unauthorized transaction.

8. APPEAL AND ERROR--Verdict--Evidence. Verdict should be set aside when there is no legal evidence to support it. "Where there is any evidence reasonably tending to support the verdict of the jury, it should not be disturbed by the Supreme Court; but, on the other hand, where, after a careful consideration of all the evidence in the case, it is found that there is no legal evidence to sustain the verdict, it is the imperative duty of the court to set it aside.

Error from District Court, Jackson County; Frank Matthews, Judge.

Action by Gaar, Scott & Co. against W. D. Rogers. Judgment for defendant, and plaintiff brings error. Reversed, and remanded for new trial.

John D. Rogers, for plaintiff in error.

Everett Petry, for defendant in error.

ROBBERTS, C.

¶1 This action is brought by plaintiff in error, hereinafter designated as plaintiff, against defendant in error, hereinafter designated as defendant, to recover on a promissory note.

¶2 To defeat recovery, the defendant pleads novation, by amended answer as follows:

"Comes now the above-named defendant, and for his amended answer to the petition of plaintiff alleges that the note herein sued upon by the plaintiff has been fully paid and discharged by said plaintiff by an oral agreement made and entered into at St. Louis, Mo., on or about the 1st day of July, 1907, whereby 'said plaintiff, Gaar, Scott & Company, acting by its duly authorized agent, Moses P. Johnson, did agree to release this defendant from further liability for the payment of said note'; that at the same time, as a part of the same transaction, one G. L. Walcott did, for a good and valuable consideration, promise and agree with said plaintiff, and this defendant, to pay said note, and said plaintiff, for and in consideration of such promise and agreement of said G. L. Walcott, did thereby expressly agree to relieve this defendant from any further liability for the payment of said note; that by reason of such mutual agreement, contract, and novation, said defendant has been fully released and discharged by said plaintiff from payment of the note herein sued upon, and defendant prays for judgment for costs."

¶3 Motions and demurrers attacking the original answer were filed, but they will not be considered, for the reason that the amended answer is complete in itself, and, therefore, supersedes the original answer. Plaintiff replied by general denial, unverified. The case was submitted to a jury. Verdict returned for defendant. Motion for newtrial overruled. Exceptions noted. And plaintiff brings error.

¶4 It is not claimed that the contract of novation was entered into by the principal, or even the principal agent; but defendant contends that in the absence of the principal agent, his clerk or subagent made the agreement. The controlling question, therefore, is, Whether a clerk or subagent of the principal agent of plaintiff had authority to enter into a contract of novation with defendant, and if so, whether the transactions and circumstances proven are sufficient in law to establish novation as claimed by defendant?

¶5 For a better understanding of the case, we submit the following as a concise statement of the evidence, and upon these facts the law of the case will be determined.

¶6 According to the issues raised by the pleadings the burden was evidently upon the defendant, but the plaintiff, so far as the order of the trial progressed, assumed the affirmative by introducing its evidence, showing the sale by plaintiff of a threshing machine to defendant, for which the note in controversy, introduced in evidence, and which was the last note falling due, all others having been paid, and which showed a balance of $ 593.39, including $ 50 attorney fees, due on the 1st day of January, 1911.

¶7 The defendant, to maintain the defense of novation, testified that he bought the machine from the plaintiff about the 1st of July, 1905, through its agent at St. Louis, Mo., Moses P. Johnson, made his notes payable to plaintiff, and delivered them to said Johnson, as agent of plaintiff. He also received the machine from Johnson. That plaintiff kept a large amount of machinery in St. Louis, and maintained an office there, under the management of Moses P. Johnson, and that he paid his notes there as they became due. That in the latter part of July, 1907, a man by the name of G. L. Walcott proposed to buy the machine from him and he said to him, "You can buy me out if you make it satisfactory to Gaar, Scott & Co." The same day they went to the office of plaintiff, in St. Louis. The regular agent, M. P. Johnson, was not there. They told their business to a son and son-in-law of M. P. Johnson, who were in the office. Defendant said to "Young" Johnson and Robinson:

"We came down here to trade for the machine;" and "Young" Johnson, son of Moses P. Johnson, asked Walcott a few questions about what he had. "We talked the matter over. I told Walcott I would pay the interest, provided we made the trade, and we traded. Walcott paid me $ 100, and I paid all the interest then due to 'Young' Johnson, except about $ 16, and I went home."

¶8 He also testified that he had frequently done business with Moses P. Johnson before, and that "Young" Johnson, this same son, attended to it.

"I had been doing business there about two years, had been in this office many times. M. P. Johnson was usually present. Had been there when M. P. Johnson was not there, and 'Young' Johnson would transact the business. Have had transactions with Gaar, Scott & Co., carried on by 'Young' Johnson in the absence of his father. These transactions were carried to their completion by Gaar, Scott & Co.

"Have had one letter from M. P. Johnson concerning business had with 'Young' Johnson. That was the letter of September 14, 1907, and is as follows:

"Johnson-Robinson Machinery Company.

"Successors to Moses P. Johnson Machinery Company.

"St. Louis, Mo., Sept. 14, 1907.

"Mr. W. D. Rogers, Olustee, O. T., Greer Co.--Dear Sir: When you were in our office on July 23rd last you paid $ 60 on your note due September 1st, and you were to pay $ 16.03 additional interest. This has not been received by us. In other words, you were to have paid the interest in full up to that time, which amounted to $ 76.03. Please send us your cheek for $ 16.03 promptly, so that I can forward same to the factory.

"Yours very truly,

"Johnson-Robinson Machinery Company,

"By Moses P. Johnson."

¶9 Evidently this letter has reference to the Walcott-Rogers transaction. The defendant testified further as follows:

Q. "When you were in St. Louis and had the transaction you have testified to, what was the agreement concerning the payment of interest on the note sued on?" A. "They just agreed to take Walcott for the notes. I agreed to pay the interest. I paid part of it, and sent the other when I got home. That money was sent in response to that letter. They just agreed to take Walcott for the note. I agreed to pay the interest. I paid part in St. Louis and balance when I got home."

¶10 It will be noticed that they were in St. Louis on July 23, 1907, before the note was due, which was September 1st, and the above letter...