Kizziar v. Pierce, 33837
| Decision Date | 17 October 1950 |
| Docket Number | No. 33837,33837 |
| Citation | 204 Okla. 51,226 P.2d 941 |
| Parties | KIZZIAR v. PIERCE. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
1. In a cause tried to a jury where the evidence is in conflict, the judgment based on the verdict will not be disturbed where there is competent evidence reasonably tending to support the same.
2. If the instructions, taken together and considered as a whole, fairly present the law applicable to the issues raised by the pleadings on which competent evidence has been introduced, they are sufficient.
Gore & Gore, Altus, for plaintiff in error.
Ryan Kerr, Altus, for defendant in error.
This is an appeal from a judgment rendered upon a jury verdict in plaintiff's favor, in an action brought to recover damages for defendant's breach of the terms of an oral contract, alleged to have resulted in loss of plaintiff's business.
Plaintiff alleged she entered into an oral contract with defendant for purchase of the fixtures in a cafe owned by defendant in the city of Altus, for a consideration of $600.00, payable $50.00 down, the balance to be discharged in monthly payments according to her ability to pay, plus $25.00 monthly rental for the building; that she made two monthly payments of $15.00, plus rent, which were accepted by defendant; August 18, 1947, another payment was tendered defendant, but he declined to accept same and ordered her to leave the premises; the following day defendant took charge of the premises in violation of the contract and refused to allow plaintiff to enter thereon to continue operation of her business, although she was ready and willing to perform under the contract. Plaintiff further alleged she had an established business returning approximately $200.00 per month profit, which she lost because of defendant's breach. Plaintiff asked judgment for $100.00 damages.
Defendant's answer admitted sale of the cafe equipment for $600.00, but alleged the agreement was that plaintiff was to pay $50.00 down and the balance at the rate of $50.00 per month, plus the rent; that plaintiff failed to meet her payments, removed some of the equipment and then abandoned the premises, forcing defendant to retake possession of the building and remaining equipment, title to which he had retained under their agreement.
Upon the issue thus raised by the pleadings the case was tried to a jury, and a verdict was rendered for plaintiff in the amount of $370.00. The matters urged by defendant in seeking reversal of the judgment, with two exceptions, are predicated solely upon the alleged insufficiency of the evidence to sustain the judgment. Thus it is necessary to determine whether the evidence showed that defendant breached the contract and refused to permit plaintiff to remain on the premises, or whether plaintiff abandoned the premises as contended by defendant; and, if a breach of contract occurred, whether there was evidence to sustain a verdict for damages in her favor.
The evidence showed that plaintiff was desirous of taking over this particular cafe business. Her testimony was that she agreed to buy, and borrowed the $50.00 required for the down payment, agreeing to pay the balance as she was able to make payments, and took possession May 17, 1947. Thereafter plaintiff made payments for June and July in the amount of $15.00 each, for which defendant gave her a receipt, along with receipts for her rent payments. The agreement of the parties was that plaintiff should keep the fixtures and equipment in repair, although defendant retained title to same. Plaintiff testified it was necessary for her to purchase additional cooking utensils and silverware. Plaintiff and defendant had a disagreement over some food defendant sold plaintiff for use in the business. Shortly after receiving the last payment defendant advised plaintiff she would have to raise $120.00 he claimed to be due in addition to what she had paid, although plaintiff contended their agreement did not require this.
Plaintiff tendered her payment, and the rent, in August but defendant refused to accept same, and plaintiff told him if he did not want her as a tenant, or if they could not work out an amicable settlement, to return her down payment and she would vacate. Defendant refused to do this and demanded that plaintiff get out. Plaintiff testified that, being unable to reach any agreement with defendant, and being tired of defendant telling her to vacate, she realized the impossibility of continuing the business under such circumstances. She then moved out her stock, withdrew her deposits and locked up the building, although she intended to hold the place until some settlement was made with defendant. The following day defendant took possession of the premises without plaintiff's consent, and began some work on the building.
There was further evidence that plaintiff had an established, going business which returned a substantial profit, plaintiff having paid income tax upon $580.00 which she made during the period she operated the cafe. Plaintiff further testified she had performed under the contract as she understood their agreement.
Defendant introduced testimony to the effect the parties agreed plaintiff was to pay $50.00 per month on the fixtures; that plaintiff herself caused the dissension between the parties; that defendant offered to buy plaintiff out, but she refused to consider this. There was testimony that defendant never ordered plaintiff to vacate. Another witness testified that the day plaintiff moved out he observed the back door of the building open and advised defendant of this, and defendant requested him to nail the door shut, which the witness did.
Defendant testified he desired to dispose of the cafe fixtures and when plaintiff inquired about buying he priced the establishment at $600.00, to be paid $100.00 down and $50.00 per month. Plaintiff offered to pay $50.00 down and like amount each month, to which defendant agreed. Plaintiff was unable to meet her monthly payments, and he accepted the $15.00 payments to help her, upon the understanding that she would pay the balance due in a short time. Sometime later he was in the cafe and ascertained that plaintiff had nothing left there, and asked her to cut off the electricity if she left. Upon later being advised the building was unlocked defendant asked a party to nail the door shut. He denied threatening plaintiff, but admitted he took possession after she left, had the premises cleaned up, and then leased the cafe to another party.
Under the record this matter reduces itself to consideration as to whether the evidence is sufficient to support the finding of the jury. It is elementary...
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