J. R. Watkins Co. v. Palmer

• Decision Date: 07 March 1944
• Docket Number: Case Number: 31223
• Parties: J. R. WATKINS CO. v. PALMER
• Court: Oklahoma Supreme Court

1944 OK 122

146 P.2d 843

193 Okla. 684

J. R. WATKINS CO. v. PALMER

Case Number: 31223

Supreme Court of Oklahoma

Decided: March 7, 1944

Syllabus

¶0 1. PRINCIPAL AND AGENT--Action for damages for alleged breach of contract committed by defendant's agent--Necessary proof as to agency.

In an action for damages for alleged breach of a contract, where it is sought to hold one person as the principal responsible for the alleged breach committed by another person as agent, it must be made to appear by competent evidence: (1) that the relation of principal and agent existed between the two at the time the breach was committed; (2) and the acts complained of were committed as agent and in the course of the employment of such agent.

2. TRIAL--Trial on cross-petition after dismissal by plaintiff--Insufficiency Of cross-petitioner's evidence to withstand demurrer and motion for directed verdict.

In an action where plaintiff's petition has been dismissed before trial, tried on a cross-petition where the cross-petitioner wholly fails to prove a cause of action, a demurrer to such evidence should be sustained and motion for directed verdict granted.

Appeal from District Court, Creek County; C. O. Beaver, Judge.

Action on cross-petition by James Palmer against the J. R. Watkins Company to recover damages for an alleged breach of contract. From a verdict and judgment in favor of cross-petitioner, the plaintiff appeals. Reversed.

Chas. L. Yancy, Kavanaugh 'Bush, and Charles P. Gotwals, Jr., all of Tulsa, for plaintiff in error.

E. R. Powers and Speakman & Speakman, all of Sapulpa, for defendant in error.

OSBORN, J.

¶1 This action was instituted originally by J. R. Watkins Company, hereinafter referred to as plaintiff, against James Palmer, hereinafter referred to as defendant. and others not here involved, to recover a balance on account alleged to be due for goods, wares, and merchandise which had been sold and delivered under the terms of a contract providing for their resale. Defendant answered with a general denial, a specific denial of the execution of the contract, and a plea in abatement. Defendant also filed a cross-petition in which he sought damages for breach of contract by plaintiff in authorizing and permitting other persons to sell its wares in the territory which defendant alleged had been assigned exclusively to him. The allegations of the cross-petition were put in issue by verified answer.

¶2 When the cause came on for trial the plaintiff dismissed its petition, and trial thereupon proceeded upon the cross-petition and the verified answer thereto. The sufficiency of the cross-petition was not challenged by demurrer, but was challenged for the first time by objection to the introduction of any evidence thereunder. Vie objection so interposed was overruled and exceptions saved and trial thereupon was had to a jury. The only evidence introduced was that of the defendant. The evidence disclosed, in substance, that the contract between the parties was one which obligated plaintiff to sell and deliver to defendant goods, wares, and merchandise at plaintiff's current wholesale prices for the purpose of resale by defendant in certain territory described in a socalled "locality sheet" which was attached to and made a part of the contract; that plaintiff had furnished defendant with the required merchandise, and that defendant had proceeded to engage in its sale for a period of some four or five months; that during said time on two occasions the defendant wrote plaintiff and complained that a Mr. Truitt and a Mrs. Conley were selling or attempting to sell products of plaintiff in the territory which had been assigned to the defendant; that thereupon plaintiff notified defendant that the above-named parties were not authorized to sell in defendant's territory and that they would be so notified, and directed defendant to ascertain from Mr. Truitt whether he was, in fact, encroaching upon defendant's territory; that defendant made inquiry of Mr. Truitt and was informed by him that he had not made any sales in defendant's territory. There was no evidence that either of said above parties had ever made any sales in the territory which had been assigned to defendant, although there was some evidence that they had attempted to make sales therein on several occasions. The testimony of defendant was that, during the time in which he had been engaged in the business of selling, he had been able to sell approximately $75 worth of merchandise a week. Under the terms of the contract which was introduced, the defendant received 40% on gross sales, or about $30 per week. Defendant further testified that he could have made a living out of the business had it not been for the interference therewith by Mr. Truitt and Mrs. Conley in attempting to sell in the territory of ...