Kurz v. Stafford
| Decision Date | 12 February 1929 |
| Docket Number | 18873. |
| Citation | 274 P. 674,135 Okla. 121,1929 OK 69 |
| Parties | KURZ v. STAFFORD et al. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
Whenever a defendant intends to rest his defense upon any fact which is not included in the allegations necessary to the support of plaintiff's case, he must set it out. Any fact which avoids the action and which the plaintiff is not bound to prove in the first instance in support of it is new matter and must be specifically pleaded.
The right of appellant to recover was properly submitted to the jury on his own theory. The jury finding against him on the theory relied upon, he will not be permitted to change front in this court and claim the right to recover upon some other theory.
Appeal from District Court, Alfalfa County; Charles Swindall, Judge.
Action by George Stafford and another against Theo. Kurz. Judgment for plaintiffs, and defendant appeals. Affirmed.
Titus & Hill, of Cherokee, for plaintiff in error.
R. M Chase and W. L. Houts, both of Alva, and Guy D. Talbot, of Cherokee, for defendants in error.
The plaintiff in error was the defendant below and the defendants in error were plaintiffs below, and will be so referred to herein.
The plaintiffs were real estate agents, and and had a ranch listed with them for sale or trade. They contend that they were approached by the defendant, who stated that he had a stock of goods, some buildings and some lots for sale or trade, and wanted to know what plaintiffs could procure in trade for his property; that they told him about the ranch and that the defendant then wanted to know what commission they would charge him if they got a trade, and that they told him the commission would be $500 on his mercantile stock, and, if the buildings and lots were traded, it would be more.
It is clear that the plaintiffs then furnished the defendant with a description of the ranch, the name of the owner, and the agent in charge, and the defendant went to the property, examined the same, and concluded an agreement with the owner thereof by which a trade was consummated.
The defendant refused to pay any commission, and plaintiffs filed their suit against the defendant, setting forth their views as aforesaid, and praying for judgment in the sum of $500 for the sale of the stock and the usual and customary commission in the sum of $400 for the sale of the buildings and lots.
To this petition a verified answer was filed which contained a general denial, a denial of the employment, a denial that plaintiffs were his agents, a denial that the plaintiffs in any manner or form negotiated or traded the property, a denial of the indebtedness sued upon or any sum, and an allegation that plaintiffs were not licensed real estate agents. To this answer a reply was filed which was a general denial.
A trial was had to a jury, which resulted in a verdict in favor of the plaintiffs and against the defendant in the sum of $500 on the first cause of action and $150 on the second cause of action. A motion for new trial was filed and overruled. Judgment was rendered in conformity to the verdict, and defendant filed his petition in error setting out five grounds for reversal as follows:
"(1) Said court erred in overruling the motion of plaintiff in error for a new trial.
(2) Said court erred in admitting evidence on the part of the defendant in error.
(3) Said court erred in refusing and ruling out competent and legal evidence on the part of plaintiff in error.
(4) Said court erred in sustaining defendant's demurrer to the evidence of plaintiff at the close of plaintiff's case.
(5) Said court erred in not sustaining defendant's motion for a directed verdict."
Defendant, in his brief, presents two assignments of error as follows:
The plaintiffs answer the argument of defendant by stating that the defense set forth by the defendant in his first assignment of error was neither pleaded nor attempted to be proven nor claimed upon the trial; that no request was made that the jury be instructed on that theory of the case, and that the question, not having been raised in the trial court, could not be considered by this court on appeal, and that the evidence in the case does not support the contention of the defendant in his first assignment of error.
An examination of the petition in error discloses that the contention of defendant in his first assignment of error is not specifically set out therein. The record contains no request by the defendant for instructions. The instructions of the court do not cover the question raised by the defendant's first assignment of error, and no objection was made or exception taken to the instructions.
An examination of the evidence discloses that each of the plaintiffs testified as to the agreement for the sale and commission. The defendant attempted to explain this by stating that the plaintiffs approached him and proposed to trade him the ranch, and that he never at any time listed his property with them for sale; that the first he ever heard of the plaintiffs claiming commission from him was during his negotiations with the ranch owner, who told him that plaintiffs were going to hold him for commission.
There is but one question to be determined in this cause, Were the matters and things set out in the first assignment of error of the...
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