Osenbaugh v. Virgin & Morse Lumber Co.

• Decision Date: 02 July 1935
• Docket Number: 23622.
• Citation: 46 P.2d 952,173 Okla. 110,1935 OK 1219
• Parties: OSENBAUGH et al. v. VIRGIN & MORSE LUMBER CO.
• Court: Oklahoma Supreme Court

46 P.2d 952

173 Okla. 110, 1935 OK 1219

OSENBAUGH et al. v. VIRGIN & MORSE LUMBER CO.

No. 23622.

Supreme Court of Oklahoma

July 2, 1935

Syllabus by the Court.

1. Where an answer contains an allegation of agency and the plaintiff does not file a verified denial of such agency under oath, as provided by section 220, O. S. 1931, such allegation is taken as true, and no further proof of the agent's authority is required.

2. When a person, representing himself to be the agent of, and acting for, a disclosed principal, purchases material, his principal is liable therefor, and there is no personal liability on the part of the agent, but where he acts for a principal but does not disclose who his principal is, he thereby binds himself individually.

3. It is error to give an instruction representing to the jury a theory of the case, when there is no evidence to support such theory.

Appeal from Superior Court, Okmulgee County; J. H. Swan, Judge.

Action by the Virgin & Morse Lumber Company, a copartnership composed of Scott Morse and another, against C. C. Osenbaugh and another, wherein defendants filed a cross-petition. From a judgment, defendants appeal.

Reversed and remanded.

OSBORN V. C.J., dissenting.

E. W Smith, of Henryetta, for plaintiff in error.

W. L Morse, of Henryetta, for defendants in error.

BAYLESS Justice.

Virgin & Morse Lumber Company, a copartnership, defendant in error herein but plaintiff below, instituted an action in the superior court of Okmulgee county, against C. C. Osenbaugh and Wm. Smith, plaintiffs in error herein, but defendants below, to recover the sum of $367.23, with interest, as the balance due upon an account for materials furnished and labor performed. A copy of the account was attached to the petition, as was an affidavit verifying the correctness of the account. The pleading of defendants, upon which the case was tried, was in the form of an answer and cross-petition. The plaintiff sought to strike this pleading as being improper, but the trial court denied its motion. There is nothing improper about the answer, but the cross-petition should have been stricken, since the court had dismissed as to O. J. Pharoah and Lions Club of Henryetta, parties defendant. This cross-petition was directed toward O. J. Pharoah and the Lions Club in part, if not in whole, and was therefore irrelevant as between plaintiff and defendants. The plaintiff has not appealed, and any error committed by the trial court in refusing to strike the cross-petition is waived; but we have made this comment to show that the cross-petition will not receive consideration by us. The jury returned a verdict in favor of the plaintiff, and the defendants brought this appeal.

The answer of the defendants, in addition to the general and specific denials of the allegations of the petition, contained the following affirmative defense: "Further answering, these defendants say that they conducted what is known as the Pharoah Park, in which a swimming pool is located, during a portion of the summer of 1930 as the agents and representatives of O. J. Pharoah and the Lions Club of Henryetta, Oklahoma, and that the plaintiffs herein were fully advised of the relationship existing between these defendants and the said Lions Club of Henryetta, Oklahoma and O. J. Pharoah and that if any sum or sums of money are now due said plaintiff by reason of material furnished and labor performed in said park, it is due from the said Lions Club of Henryetta, Oklahoma, and or the said O. J. Pharoah and not from these defendants."

Plaintiff filed a reply, which, after the general denial of the allegations of the defendant's answer, read in part: "And for further reply and defense to such answer, the plaintiff alleges and states: That at the time the debt sued upon was incurred by the defendants, C. C. Osenbaugh and Wm. Smith, as set forth in plaintiff's petition, said defendants did not disclose to plaintiffs their alleged relation as agents of O. J. Pharoah and the Lions Club of Henryetta, but the said debt was incurred by the said C. C. Osenbaugh and Wm. Smith on their own behalf, and the merchandise sold to them on their individual and personal credit, notwithstanding any actual relation between them and the said O. J. Pharoah and the Lions Club of Henryetta which may have existed without the knowledge of plaintiffs."

Several assignments of error are made, but they are grouped into three propositions for the purpose of argument. We will discuss only the first and third assignments because they are decisive of the appeal. These propositions read:

"1. The defendants were entitled to judgment on the pleadings.

3. The Court erred in his instructions to the jury."

Under the first proposition, the defendants contend that having pleaded agency in their answer, and the plaintiffs having replied to this tendered issue by an unverified general denial of the agency, the defendants' status as agents became settled (section 220, O. S. 1931) and no cause of action was stated against them individually by the pleadings, and consequently they were entitled to have their motion for judgment on the pleadings sustained. They rely on Gaar, etc., Co. v. Rogers, 46 Okl. 67, 148 P. 161; Burford v. Hughes, 75 Okl. 150, 182 P. 689; St. Louis & San Francisco Ry. Co. v. Cake, 25 Okl. 227, 105 P. 322; and other cases. Plaintiffs controvert this contention and insist that the plea of agency was not new matter necessitating a reply, that it was a mere traverse of the allegations of their petition, and that agency, as a defense, may be shown under a general denial. They cite Terrapin v. Barker, 26 Okl. 93, 109 P. 931, and Denman v. Brennamen, 48 Okl. 566, 149 P. 1105, L. R. A. 1915E, 1047.

We are of the opinion that a distinction between the matter of pleadings and the matter of proof at the trial is made by said section, supra. Even though, as a general rule of proof, agency may be shown under a general issue, nevertheless, the positive requirement of this statute controls when a party to a suit, who is relying upon agency for relief, brings into play this statute by specially tendering the issue of agency. Whenever one of the parties to a suit pleads an appointment of authority, as spoken of in said statute, he, in effect, serves notice upon his opponent that the statutory rule of issues specifically made by the pleadings are to control, and not the rule of proof under the general issue, unaffected by the statute.

In the absence of this section of our statute, the plaintiff's position might be correct. But since we have this statute which is plain and unambiguous in its language, and since the defendants availed themselves of it by pleading agency specially as a defense, the plaintiffs were obligated to join the...