Whitcomb v. Oller, Case Number: 3217

• Court: Supreme Court of Oklahoma
• Writing for the Court: SHARP, C.
• Citation: 41 Okla. 331,1913 OK 754,137 P. 709
• Parties: WHITCOMB v. OLLER et al.
• Decision Date: 23 December 1913
• Docket Number: Case Number: 3217

1913 OK 754
137 P. 709
41 Okla. 331

WHITCOMB
v.
OLLER et al.

Case Number: 3217

Supreme Court of Oklahoma

Decided: December 23, 1913

Syllabus

¶0 1. EVIDENCE--Best and Secondary--Entries in Books of Account. It is competent for one who has personal knowledge of a transaction to testify thereto, although books of account covering the transaction are kept by the creditor.

2. PRINCIPAL AND AGENT--Proof of Agency--Competency. Agency and the extent of authority may be proved by the testimony, though not by the declarations of the agent.

3. JUSTICES OF THE PEACE--Pleadings--Sufficiency--Appeal. The same degree of particularity in pleadings is not required in actions before a justice of the peace that is required in courts of record, and a pleading that is sufficient in a justice's court is sufficient in the appellate court, where the cause is tried de novo upon appeal.

4. PRINCIPAL AND AGENT--Acts of Agent--Liability of Principal. One who, with knowledge of a given transaction, accepts the benefits flowing therefrom, done by one assuming, though without authority, to be his agent, ratifies the act, and is liable therefor to the same extent as if authority to act had been previously given.

5. APPEAL AND ERROR--Harmless Error--Instructions. Where it appears from the evidence that a verdict is so clearly right that, had it been different, the courts should have set it aside, such verdict will not be disturbed merely for the reason that there is error found in the instructions.

Fuller & Porter, for plaintiff in error.

Harry T. Kyle, for defendants in error.

SHARP, C.

¶1 This case originated in a justice of the peace court, where the plaintiffs, Jacob Oller and F. C. Oller, doing business under the firm name and style of the Oller Heating Company, obtained judgment against the defendant, James A. Whitcomb, in the sum of $ 51.55. On appeal to the county court, plaintiffs again had judgment. The facts out of which the controversy arose are that defendant, in July, 1906, and subsequent thereto, was the owner of a large residence building in McAlester, which he permitted an employee named Leoffler to occupy and use free of rent. In December, 1909, the furnace in said residence fell to pieces, and Leoffler, acting, as he claims, for Whitcomb, ordered repairs thereon to be made by the plaintiffs, and instructed them to send the bill to Whitcomb. The bill was first sent to Leoffler and afterwards to Whitcomb. The latter paid no attention to repeated notices sent him at intervals of from two to six weeks apart. The evidence of the plaintiffs consisted of the testimony of F. C. Oller as to the doing of the work, its necessity in the house, and the nonpayment therefor by defendant, and that of Leoffler, by deposition, concerning the giving of the order for the repairs, and his agency and authority in acting for defendant in causing the repairs to be made. To his deposition was attached a letter to him from defendant, the first part of which reads:

"Dear Sir: Authority is unnecessary to take care of my property in South McAlester. I gave you that when I left you there, and had expected that you would move into that house before this time."

¶2 This letter was written to Leoffler over three years prior to the transaction involved in the present case, and had reference to other repairs made to the house at that time. Leoffler, in his deposition, testified that Whitcomb was to pay for all necessary repairs, without regard to when contracted. In the first assignment of error, it is urged that the account upon which plaintiffs' action was founded was not properly proved, and that section...