Knupp v. Hubbard
| Decision Date | 17 January 1928 |
| Docket Number | Case Number: 17298 |
| Parties | KNUPP v. HUBBARD. |
| Court | Oklahoma Supreme Court |
¶0 1. Principal and Agent--Agency as Question for Jury.
Agency, when made an issue, is a question of fact to be determined, in proper cases, by the jury, from all the facts and circumstances in evidence.
2. Evidence--Pleading--Answer in Former Case as Admission--Question of Fact as to Allegations in Answer and Denial or Explanation in Later Case.
Admissions or allegations made by a defendant in an answer filed in a case which was dismissed for want of prosecution, are admissible as against interest in a subsequent action between the same parties involving the same issues, but are not conclusive, and are subject to be denied or explained by the defendant, and the question raised between the allegations in the first cause and the denial or explanation in the latter cause is a question of fact for the jury.
3. Limitation of Actions--Period of Defendant's Absence from State to Be Subtracted from Period of Limitation Though He Owned Property in State.
Under the provisions of section 188, C. O. S. 1921, where it is stipulated in an action that the defendant has been absent from the state one-fourth of the period of time between the accrual of a cause of action and filing of suit thereon, such period of absence should be deducted from the period of limitation as fixed by statute in determining whether the cause is barred, and the fact that defendant had property within the state does not affect the suspension of the statute during his absence.
4. Appeal and Error--Verdict Supported by Evidence not Disturbed.
Where there is competent evidence reasonably tending to support the verdict of the jury and the instructions of the court to the jury fairly state the law arising upon the issues raised by the pleadings and the evidence, the judgment rendered upon the verdict will not be disturbed.
5. Same--Judgment for Driller of Oil Well for Damages for Breach of Contract by Owner Sustained.
Record examined; held, that there is competent evidence reasonably tending to support the verdict; that the instructions fairly state the law upon the issues raised, and that the judgment herein should be affirmed.
Commissioners' Opinion, Division No. 1.
Error from District Court, Osage County; Jesse J. Worten, Judge.
Action by C. H. Hubbard against W. J. Knupp, to recover damages arising under oral contract to drill an oil and gas well. Judgment for plaintiff, and defendant appeals. Affirmed.
H. H. Montgomery and M. D. Kirk, for plaintiff in error.
McGuire, Marshall & Bodovitz, for defendant in error.
¶1 C. H. Hubbard, as plaintiff, sued W. J. Knupp, as defendant, in the district court of Osage county, and alleged in his petition, in substance, that the parties entered into a verbal contract, defendant acting by and through his agent and employee, one McKinley, wherein it was agreed that plaintiff should drill an oil well for the defendant for a consideration of $ 2.50 per foot to the Mississippi lime, and $ 6 per foot thereafter; $ 50 per day of 12 hours for cleaning out, reaming, mudding, plugging, and waiting on material, fuel and water; the defendant to furnish rig, fuel and water. Pursuant to contract plaintiff drilled the well to a depth of 650 feet; that thereafter, continuously, and at divers times, the defendant failed, refused and neglected to supply gas and fuel in sufficient quantities for the proper running of the drilling machinery; that since November 14, 1920, defendant has failed to furnish any gas for drilling; that by reason of the failure of the defendant to furnish sufficient fuel, the work was greatly delayed; plaintiff was unable to keep the well free and clear from cavings; was unable to extricate certain of his tools of the value of $ 2,335 from the well, and lost the same; that in a diligent effort to save the tools which had become buried by cavings, and in order to minimize the loss, plaintiff expended the reasonable sum for shooting the well and rent of special appliances and fishing tools, the sum of $ 1,165; that plaintiff devoted 108 24-hour days in endeavoring to clean out the well, drill the same, recover his tools and in waiting on fuel, which time was of the reasonable value and agreed price of $ 100 per 24-hour day; that by reason of the breach of contract by defendant, plaintiff was damaged in the aggregate sum of $ 15,825, and prayed judgment therefor.
¶2 After demurrer, which was overruled, the defendant answered, alleging that he maintained an office and place of business, and owned and held property within the state of Oklahoma; that personal service of summons could have been made on him within the state; that the alleged cause of action did not accrue within three years next prior to the commencement of suit; specifically denied that he personally or through agent entered into the alleged contract; denied generally and specifically the allegations of plaintiff's petition, and alleged that he, acting solely for and on behalf of Knupp Oil Corporation, agreed with the owner of the lease on the lands described to drill a well on such lands for an undivided one-half interest in the oil lease; that such corporation by and through its agent, one McKinley, agreed with one Zock, who was agent of the owner of the lease, also agent of the plaintiff, that the corporation would pay for drilling the price per foot alleged in plaintiff's petition, $ 50 per day for running casing and cleaning well after it was shot, and no other sums; that the plaintiff moved on to the lease and began drilling without the knowledge of defendant or the corporation; that it was the custom of the field and contractors, and so understood and agreed by plaintiff, that the contractor should receive nothing for the drilling unless he drilled the well to the depth agreed; further alleged that he, defendant, was agent of and acting for the Knupp Oil Corporation, and that plaintiff was so informed at all times; that if plaintiff has any right of action it is against the corporation.
¶3 A reply was filed to the answer, and upon a trial of the issues a verdict and judgment was rendered in favor of plaintiff for the sum of $ 10,010, and defendant brings the cause here for review.
¶4 The parties will be referred to as they appeared in the trial court. Numerous assignments of error are set forth in petition in error, which are argued and disposed of under five propositions.
¶5 The first proposition is: "The evidence is insufficient to warrant a verdict in favor of the plaintiff." While applicable to the entire evidence and case, the argument presented is limited to the contention of defendant that there was no evidence of probative value which proves that a contract was made as alleged, and therefore the court should have sustained defendant's motion for a directed verdict.
¶6 Plaintiff, on cross-examination, testified that one G. R. McKinley, the party with whom he contracted, informed him at the time the agreement was made that the work was to be done for the defendant, Knupp, to which evidence defendant says the declarations of an agent are not competent, and calls attention to the doctrine announced in Whitcomb v. Oller, 41 Okla. 331, 137 P. 709; Mitchell v. McCaulister, 93 Okla. 203, 220 P. 631; Citizens' Bank of Gans v. Mabray, 90 Okla. 63, 215 P. 1067.
¶7 It was said in the last above case:
See, also, Holmes v. Halstid, 76 Okla. 31, 183 P. 969; Loveland v. Loafman, 92 Okla. 133, 218 P. 851.
¶8 The defendant in a prior action involving the same parties and issues as the case at bar, which prior action was dismissed for want of prosecution, filed an answer therein, verified by his counsel, in which it was admitted and alleged that the said G. R. McKinley was the agent of the defendant, Knupp, respecting the drilling of the well in question. The attorney who prepared and filed the answer in the former action testified that he prepared such answer without full knowledge of the facts, under an erroneous impression and without the advice or knowledge of the defendant, and now asserts such answer and admission was without probative value in this cause, and cites decisions from other jurisdictions holding, in substance, under the facts in those cases, that admissions in pleadings which are subsequently superseded, amended or abandoned, when not shown to have been made with the knowledge or authority of the party, were inadmissible, but from an examination of those cases, and in view of the holdings of this court, we cannot agree with defendant's contention. The Territorial Supreme Court, in the case of Lane v. C., O. & G. Ry. Co., 19 Okla. 324, 91 P. 883, speaking through Justice Burford, in the body of the opinion, said:
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