109 Okla. 200 | Okla. | 1925
Opinion by
The plaintiff in error was the plaintiff below, and the defendant in ¡error was the defendant. The parties will be designated herein as plaintiff and defendant as they appeared in the trial court.
The plaintiff brought action against the defendant seeking to recover the sum of $625, the value of a certain piano delivered by plaintiff to defendant and retained by defendant. The plaintiff alleges that he sold and delivered to defendant a certain piano which defendant paid for, but after-wards sought to exchange it for another and different piano, and that at the defendant’s request a second piano was taken to and delivered at the defendant’s residence, and the defendant afterwards refused to let the plaintiff carry away either piano, but has appropriated both to his own use, while having] paid l'or only one of them. He alleges that the pianos were of equal value. He prays judgment for the sum of $625 as the value of the first piano delivered.
The defendant answered by a general and special denial; and filed a cross-petition against the plaintiff to the effect that he had bought from the plaintiff, through an agent, one J. F. Searcy, a new Exceltone piano in mahogany ease, and as payment therefor hej had delivered to the plaintiff’s'agent a second-hand piano at the agreed price of $256. a Victrola talking machine at an agreed price of $125; a certain promissory note owned by defendant at $200 face value, a check for 3100 and another for $75, and the note was paid off by defendant in the sum of $244.45 principal and interest, and the checks were paid according to their face, a total agreed consideration of $750 besides thej interest on the note; that the plaintiff had never de livered to defendant the piano purchased from the plaintiff’s agent; that defendant did not purchase or agxeej to purchase either of the pianos delivered to his home, and held them subject to plaintiff’s order, and had tendered them to plaintiff previous to the commencement of the action; and had dei-manded delivery of the piano he had purchased and paid ft r, or & return of his $750. In the cross-petition defendant renews his tinder of the two pianos delivered at his home, and asks to rescind his contract of pui chase of the new piano, and prays judgment against plaintiff for the $750 paid to plaintiff, with interest at 6 per cent, per an-num from and after March 26, 1923.
The plaintiff answered the cross-pejtition to the effect that plaintiff, through his agent, Searcy, had sold and delivered defendant a piano, but not the kind alleged, and that the consideration paid did not amount to $750; that defendant had become dissatisfied with the piano delivered and that an agreement' was made to exchange a mahogany piano for the one already delivered, and that the mahogany piano was delivered pursuant to the agreement to exchange and the defendant had both pianos. Plaintiff further answered the cross-petition by plea of estoppel to the effect that defendant accepted' the mahogany piano in exchange for the one first delivered, and he should not now be permitted to rely upon the original agreement claimed to have beefn made with the plaintiff’s agent Searcy, as all the agreements made were merged into the agreement to exchange pianos. In the answer to the cross-petition plaintiff prayed for the sum of $625 or for a return of either of the pianos delivered to the. defendant.
Tbe case was called for trial on tbe 25tb of October, 1923, and tbe plaintiff filed a motion and affidavit for continuance because J. F. Searcy, wbo acted as plaintiff’s agent in the piano transaction, could not be present in court at tbe time of calling the ease for trial. Tbe motion to continue was overruled and exceptions allowed, and tbe trial proceeded. A jury was impaneled and the cause submitted to tbe jury resulting in a verdict for tbe defendant in tbe sum of $750, with interest as prayed for in tbe cross-petition, on which verdict judgment was entered. From tbe judgment tbe plaintff prosecutes appeal. He presents argument upon bis assignments of error under the,- following:
(1) The court erred in refusing requested instructions.
(2) Tbe court erred in not submitting tbe question of tbe authority of Searcy as plaintiff’s agent, to tbe jury for Hs consideration.
(3) The verdict is not sustainel by sufficient evidence, and is contrary to (be law
The plaintiff complains that the court refused to give a requested instruction which is, in effejet, a direction to return a verdict for the plaintiff. Tbe requested instruction would have the effect of advising the! jury that tbe defendant had no right to retain i-csression of both pianos delivered ac bis home and that their verdict should De for tbe plaintiff for tbe value of one of tbe pianos. This requested instruction was refused. Tbe refusal to give this instruction was not error. Tbe defendant alleged in bis pleading that be bad tendere 1 to tbe plaintiff tbe two pianos and had demanded the pianos which be contends he had bought, or a return of tbe consideration which be had paid. Such tender is made in tbe pleading; and again in tbe defendant’s testimony he tenders to. the plaintiff the two pianos. There was certainly enough in the testimony to make it a question of fact for the jury to determine whether or not the defendant had kept either onq' or botn of tbe pianos against tbe will of the plainFfr. That being so, the plaintiff was not entitled to a directed verdict upon that point.
Tbe plaintiff complains that the court erred in not submitting to tbe jury the question of whether or not plaintiff’s agent, J. F. Searcy, was acting within tbe scope of his authority in making the piano deal which the defendant claims was made. Tbe defendant alleged that tbe transaction was had with J. F. Searcy, wbo was the plaintiff’s salesman. The plaintiff’s answer to tbe defendant’s cross-petition nowhere puts in issue tbe authority of J. F, Searcy to make the sale of a new piano to defendant, but admits that Searcy was acting as plaintiff’s agent. There is no denial in either pleadings or evidence that Searcy was acting within the apparent scope of his authority as agent of tbe plaintiff. Tbe defendant testified to tbe effect that he made a deal with Searcy as agent for plaintiff, in which defendant bought a new piano in mahogany finish, and paid therefor to such agent money and property of the value of $750. It seems that the particular property which defqhdant turned over to tbe plaintiff’s agent bad never reached tbe plaintiff, but it is in no way denied that tbe proceeds were turned over to plaintiff and accepted and used by him. Thdre is neither pleading nor evidence in the record which appears to present any issue of fact as to whether or not the agent was acting, in his dealings with the defendant, within tbe apparent scope of bis authority. That being so, there was no issue of fact as to whether or not thd plaintiff’s agent was acting within the apparent scope of his authority .to be submitted to the jury. Both thej plaintiff and his wife testified that Mr. Searcy was employed by them to sell pianos.
Tbe plaintiff complains that tbe verdict and judgment are not supported by sufficient evidence The defendant’s evidence in support of bis. cross-petition tended to show that be bad purchased from tbe plaintiff, through his agent, J. F. Searcy, a new Exceltone piano in mahogany case, and had paid therefor money or its equivalent amounting to $750; that thq plaintiff had not complied with the contract and had failed to deliver to defendant the new piano, although he had made repeated requests upon the plaintiff to deliver it; that a part of tbe consideration for the new piano was a promissory note of tbe face value of $200 which defendant indorsed and became responsible for. and that this note was placed in a bank but was not paid by the maker. Defendant’s attention was called to it and it seems that defendant agreed to pay off the note if plaintiff would furnish him tbe piano which be bad bought. Defendant paid off tbe note, principal, and interest, and still the plaintiff failed and refused to deliver the new piano. Plaintiff contends, and bis evidence tends to show, that tbe defendant had bought the first! piano delivered and had become dissatisfied with it, and an agrément was made to make an exchange, and pursuant thereto the sec
We recommend that the judgment be affirmed.
The defendant in error in his brief moves for judgment on the supersedeas bond in thej event the judgment is affirmed. It appears from the record that' the ease was tried on the 26th day of October, 1923, and a verdict of the jury was returned for defendant in the sum of $750, with" interest at 6% per annum from and after the 26th of March, 1923, and a judgment was entered in defendant’s favor and against the plaintiff in accordance therewith; that the plaintiff prosecuted appeal to the Supreme Court, superseding the judgment of the district court by giving a supersedeas bond in the sum of $1,600 with one W. D. Black as surety on such supersedeas bond. It further appears that the defendant is now ejn titled to judgment on the said supersedeas bond.
It is, therefore, by the Supreme Court, considered, ordered and adjudged, that the defendant in error, O. R. Jeter, do have and recover of and from W. D. Blaek, surety on the plaintiff in error’s supersedeas bond, the sum of $750, with interest at 6% pejr annum from and after the 26th of March, 1923, together with costs; for all of which let execution issue.
By the Court: It is so ordered.
