Shuler v. Viger

Decision Date09 November 1926
Docket NumberCase Number: 17078
Citation252 P. 18,1926 OK 890,123 Okla. 110
PartiesSHULER v. VIGER et al.
CourtOklahoma Supreme Court
Syllabus

¶0 1. Principal and Agent--Person Dealing with Alleged Agent Required to Ascertain Authority. It is incumbent upon a person dealing with an alleged agent to discover, at his peril, whether the assumed agency be general or special, that such pretended agent had authority, and that such authority is in its nature and extent sufficient to permit him to do the proposed act.

2. Same--Burden of Proof of Agency. The law itself makes no presumption of agency, and the burden of proving agency, including not only the fact of its existence, but its nature and extent, rests ordinarily upon the party who alleged it.

3. Same--Requisites for Ratification of Unauthorized Acts. To establish a ratification of an unauthorized act, of one assuming to act as agent of a third person, the third person must have full knowledge of all the material facts at the time of the ratification.

4. Same--Lack of Proof of Agency to Support Judgment for Brokers' Commission. Record examined, and held, that there is no evidence to show that the alleged agent who entered upon the oral agreement sued upon was acting in the course of his employment and within the scope of his actual or apparent authority, or that the acts of such agent were ratified by his principal.

C. R. Nixon, for plaintiff in error.

F. G. Viger and F. E. Riddle, for defendants in error.

PINKHAM, C.

¶1 Isaac Shuler, the plaintiff in error, was the defendant in the trial court, and the defendants in error F. G. Viger and C. D. Hughes were plaintiffs. The parties will be referred to as they appeared in the trial court. The plaintiffs alleged in their petition that on and prior to August 4, 1919, the defendant was the owner of a certain string of standard tools for the drilling of oil wells, and that he was desirous of selling the same, and that, acting through and by his authorized agent, one T. A. Simpson, he agreed orally with the plaintiffs that if they would sell the said tools for the sum of $ 10,000 net for the defendant, or would find a purchaser for the same for that amount, the plaintiffs could retain the amount paid by such purchaser in excess of the sum of $ 10,000 as their commission. Plaintiffs further alleged that they found a purchaser, one Staley, who purchased said tools for the sum of $ 15,000, which amount was paid by the said Staley to the defendant, and that the defendant paid to plaintiffs the sum of $ 1,000, which amount has been credited upon the amount due plaintiffs by defendant, and that defendant is now justly and legally indebted to the plaintiffs in the sum of $ 4,000, with interest thereon. The defendant filed a verified answer denying that he authorized the said T. A. Simpson to negotiate the sale of said tools on a basis of $ 10,000 net to defendant. The defendant in his answer admits that he personally sold the tools in question to the said Staley for the sum of $ 15,000, and that he paid the plaintiff Viger the sum of $ 1,000; and further states that he paid the said Simpson the sum of $ 500, which sums defendant alleges were received by them in full payment for all services rendered or claimed to have been rendered by them in connection with the sale of the said tools.

¶2 A reply was filed by the plaintiffs denying the allegations of the defendant's answer. Upon the issues thus joined, the case was tried to a jury and resulted in a verdict for the plaintiffs in the sum of $ 3,900, with interest. Judgment was rendered by the court in accordance with the verdict. Motion for new trial was overruled, exceptions reserved, and the cause comes regularly on appeal by the defendant to this court upon petition in error and case-made attached. For reversal of the judgment a number of specifications of error are set out in the petition in error and in defendant's brief, all of which are presented and discussed under the proposition that the verdict and judgment are not supported by the evidence and are contrary to law. The record discloses that the defendant, Isaac Shuler, was the owner of a string of tools for drilling oil wells, and that one T. A. Simpson, who, it appears, had been connected with the defendant in the oil business, brought to the defendant a man by the name of Staley from the state of Texas to purchase the tools in question, and negotiations were carried on between the defendant Shuler and Mr. Staley and his partner, which finally resulted in the sale of the said tools to Mr. Staley for $ 15,000. It further appears without dispute that at no time prior to the closing of the transaction and the receipt of the money by the defendant had the defendant ever heard that the plaintiffs or either of them claimed any commission for the sale of the property, and that not until some ten days or two weeks thereafter when the defendant paid Simpson $ 500 and the plaintiff Viger $ 1,000. It was not contended by the plaintiffs that they or either of them had any contract, oral or written, with the defendant Isaac Shuler for the sale of these tools. It was the theory of the plaintiffs that Simpson was the agent of the defendant, and that they had informed Simpson that they had a party who desired to purchase a string of drilling tools, and that Simpson, acting on behalf of the defendant, informed them that the defendant had a string of tools which he would sell for $ 10,000, and that an oral agreement was then made between Simpson and the plaintiffs to the effect that the tools should be sold to Mr. Staley for $ 15,000, and that the plaintiffs should have as commission or compensation for their services for producing the purchaser, the difference between $ 10,000 net to the defendant and $ 15,000, the sum to be paid by the purchaser, less $ 500 to be paid Simpson by the plaintiffs.

¶3 The facts upon which this theory was based, as disclosed by the evidence, are substantially as follows: The plaintiff Hughes met Mr. Staley at a hotel at Tulsa, and learned from him that he had come from Texas to buy a string of drilling tools, and Staley asked Mr. Hughes if he knew where he could buy them. Mr. Hughes did not know at the time and so informed Mr. Staley, and, later, Hughes inquired of the plaintiff, Viger, where such tools could be bought. The plaintiff Viger did not know, and later the plaintiffs met Simpson, and Viger asked Simpson if he knew where a string of tools could be purchased, stating that he had a purchaser. Simpson stated to them that the defendant had such a string of tools, and he thought they could be bought for $ 10,000. Simpson was introduced by the plaintiffs to Staley, the purchaser, and priced this string of tools to him at $ 15,000. The plaintiffs each testified that Simpson stated to them that the defendant, Shuler, had a string of tools that was ready to load, and that he, Shuler, wanted $ 10,000 for them, and that after making this statement Simpson went to the defendant's office and came back in a short time and reported to them that the defendant would take $ 10,000 for the tools, but the plaintiffs would have to do the loading. It is admitted that neither of the plaintiffs accompanied Simpson to the office of the defendant, and that they at no time prior to the sale of the tools had any conversation with the defendant relating to the sale of the same. The plaintiffs relied entirely, in support of their claim that the defendant was liable to them in the sum of $ 5,000 on the sale of the tools by the owner to the purchaser, Staley, for $ 15,000, upon what they claim was an agreement entered into between themselves and Simpson, upon the theory that Simpson was the authorized agent of the defendant. The vital question, therefore, is whether Simpson was or was not such an agent.

¶4 It has been held by this court that:

"It is incumbent upon a person dealing with an alleged agent to discover, at his peril, whether the assumed
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9 cases
  • Am. Nat'l Bank of Enid v. Crews
    • United States
    • Oklahoma Supreme Court
    • May 12, 1942
    ...Home v. Perin Eng. Co., 173 Okla. 142, 47 P.2d 142; McCall v. Monarch Royalty Corp., 179 Okla. 213, 64 P.2d 871, citing Shuler v. Viger, 123 Okla. 110, 252 P. 18. ¶67 In Bailey v. Glover, 21 Wall, 342, 22 L. Ed. 636, cited by plaintiffs, and relied upon by this court in Harris v. Smith, sup......
  • Gooch v. Natural Gas Supply Co.
    • United States
    • Oklahoma Supreme Court
    • November 12, 1935
    ...nature and extent of the agency. Kindl v. Doss, 167 Okla. 383, 29 P.2d 946; Mabee v. McWaters, 151 Okla. 10, 1 P.2d 636; Shuler v. Viger, 123 Okla. 110, 252 P. 18. ¶28 Reardon was clearly acting for himself. Under such circumstances the corporation is not bound. Maryland Casualty Co. v. Fir......
  • Fed. Deposit Ins. Corp. v. Grim
    • United States
    • Oklahoma Supreme Court
    • October 25, 1938
    ...had authority, and that such authority is in its nature and extent sufficient to permit him to do the proposed act. See Shuler v. Viger (1926) 123 Okla. 110, 252 P. 18, and McCall v. Monarch Royalty Corporation (1937) 179 Okla. 213, 64 P.2d 871. Plaintiff, on the other hand, claims that he ......
  • Eagle v. Free
    • United States
    • Oklahoma Supreme Court
    • October 27, 1942
    ...and 23 O. S. 1941 § 97, which requires that recovery of damages in any case shall be reasonable; and the cases of Shuler v. Viger, 123 Okla. 110, 252 P. 18, and Whitehead v. Gormley, 116 Okla. 287, 245 P. 562, which state the general rule that a verdict unsupported by competent evidence wil......
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