Tapley v. Patton, 38606

• Decision Date: 09 February 1960
• Docket Number: No. 38606,38606
• Citation: 1960 OK 23,349 P.2d 507
• Parties: E. O. TAPLEY, Plaintiff in Error, v. G. J. PATTON, Defendant in Error.
• Court: Oklahoma Supreme Court

Page 507

349 P.2d 507

1960 OK 23

E. O. TAPLEY, Plaintiff in Error, v. G. J. PATTON, Defendant in Error.

No. 38606.

Supreme Court of Oklahoma.

Feb. 9, 1960.

Syllabus by the Court.

Where there is any competent evidence reasonably tending to sustain a verdict, in an action of legal cognizance, though the evidence be conflicting, and the cause is submitted to the jury upon instructions fairly stating the applicable law, this Court will not review the evidence for the purpose of determining the weight thereof, and substitute this Court's judgment for the judgment rendered on the verdict, and the verdict will not be disturbed on appeal.

Appeal from District Court of Sequoyah County; C. F. Bliss, Jr., Judge.

Action by E. O. Tapley against G. J. Patton, in the District Court of Sequoyah County to recover a one-half interest in a real estate commission, alleged to have been carned by the joint efforts of the parties as partners. The jury found for the defendant and plaintiff has appealed from the judgment rendered. Affirmed.

Kelly Brown, Muskogee, for plaintiff in error.

J. Fred Green, Fred D. Green, Bruce Green, Sallisaw, for defendant in error.

HALLEY, Justice.

This action was filed in the District Court of Sequoyah County on October 31, 1956 by E. O. Tapley against G. J. Patton, to recover a one-half interest in a real estate commission alleged to have been earned by the parties in the sale of 380 acres of land owned by Frank Yutterman an sold to M. J. Reinhart at a price of $42,000, $40,000 of which was received by Frank Yutterman and $2,000 paid to G. J. Patton as commission for making the sale.

It is not disputed that both the plaintiff and the defendant were both qualified real estate brokers under Oklahoma law. Plaintiff alleged that he and defendant entered into an oral agreement that if defendant had any large tracts of bottom land listed for sale, the plaintiff would secure a buyer and any commission made on the sale would be divided on a fifty-fifty basis; that the plaintiff did secure a buyer and defendant a listing of the Yutterman land and the sale completed as above stated, but that defendant had refused to divide the commission of $2,000 with plaintiff, who prayed for judgment for one-half of the commission, or $1,000.

The case was tried to a jury which returned a unanimous verdict for the defendant, G. J. Patton, and plaintiff has appealed. The parties occupy the same positions as in the trial court, and will be referred to by name or as plaintiff and defendant.

An examination of the record shows that neither party objected to the instructions given to the jury.

The plaintiff submits only one proposition, which is as follows:

'The verdict of the jury and the judgment of the court is not supported by the evidence and is contrary to the evidence and the instructions of the court.'

While some other points are argued in the plaintiff's brief, the above expresses the principal contention to be considered. We have examined carefully all of the oral testimony and exhibits, and find it unnecessary to discuss all of the testimony. When we consider the nature of this action, we are certain that, being a law action, this Court must determine whether the verdict and judgment are supported by competent evidence, and it is not the duty of this Court to weigh the evidence and determine which side produced the evidence of greater weight.

Plaintiff and defendant had been friends for many years. Mr. Tapley was 67 years of age and Mr. Patton 83 years of age. They had discussed many times becoming partners in selling real estate. Mr. Tapley had for some time considered becoming connected with the Strout Realty Company of Sallisaw. After Mr. Tapley became so associated, it seems that he decided that he did not need a partner.

Mr....