*1 SUPREME COURT OF OKLAHOMA. y. Marker Gillam. . MARKER v. GILLAM. Opinion
No. 5128. Filed October 1915. Rehearing, January On 25. 1916. 351.)
(154 Pac. Damages—Contract 1. of Sale—Breach of Build- ASSIGNMENTS— ing Damages. day Miarch, Contract —Measure of On the 28th of 1908. Marker made and entered into written contract agreed to, did, tract in which he him a certain sell hand, $2,- for $1 consideration cash paid subject years, existing mortgage 499 to b'e within to an two $1,200. day July year, On the 21st same assigned purchase and delivered said contract for the sale per- security of said land to for faithful collateral contract, building formance of a construction undertook the which Garretson July, aof house for the 28th Gillam. On $6,500. Marker sold the land ato the name of Dillard for man Thereafter, for Garretson breached his contract Gillam building, whereby damaged construction of the Gillam was $1,195.79. price sum of The difference between agreed Marker to sell the land to Us actual value Garretson and Dillard, $4,000. First, at the he time sold Held: assignable; second, contract tain contract of sale was could main- Gillam damages against action for Marker for a breach of said sale, making suit; Garretson a third, damages that Gillam's measure of would be the amount damages actually him sustained reason Gillam’s failure n keep perform to tract. the terms conditions of his con- Findings 2. APPEAL AND Secondary of Facts —Foundation ERROR — Sufficiency. Evidence—Determination of When evi- tending dence is introduced show te the loss aof written purpose laying for the secondary foundation to introduce evidence, act, as to the contents of said conti the trial court is required pass upon sufficiency evidence, of such and its findings of fact thereon will court, not be disturbed unless clearly justice appears erroneous and it therefrom that a manifest in- complaining has party. been done the 3. SAME —Verdict—Evidence. Where reasonably evidence verdict, tends to sustain jury and when the properly has been instructed as to the law. and motion new trial has been denied, jury approved verdict of the court, the trial TERM, 1916:—VOL.
JANUARY Opinion of tlie Court. jury weigh province invado the this court not will
evidence and disturb the verdict. O.) Robberts, (Syllabus by *2 Court, County;
Error District Comanche from Johnson, Judge. T. J. against- Marker, George by E.
Action O. Gillam and, dying, Marker, defendant Albert administrator of estate, Judgment plaintiff, was substituted. for and brings defendant error.- Affirmed. K. Lenertz,
C. & Lucas and Parmenter in error. Stevens, Henderson, & E.
Johnson W. and J. C. Michaelson, for defendant in error.
Opinion by ROBBERTS, C. This case comes from county, the district court of Comanche and is an action to recover for breach of contract of real sale estate. March, day of record shows on the 21st 1908, George Marker, who was defendant below, quarter the case was the owner of certain sec- county, day tion of in that on that he entered land and into written contract one Francis Garretson agreed. price to him land at sub- sell said ject mortgage $1,200, payments to a to be made as-' follows: One dollar at the date and time of the execution paid, $2,499 of the or on before years deed, upon payment two from date of agreed convey which said Marker to said assigns, good or his heirs or and sufficient warranty acknowledged deed. The contract was and de- June, 1908, livered to 11th follows: SUPREME COURT OF OKLAHOMA. Murker v. G-illani. agreement, day March, “Articles of made this 21st year George Marker, in party A. D. and between part, Garretson, party first Francis part, party the second witnesseth: That said of'the first part hereby agrees party covenants and if the part, payments perform second shall make the mentioned, part hereinafter covenants on his made and-performed, party part the said of the first will con- vey party part, assure in fee second simple, whatever, good incumbrances, clear of all warranty title, sufficient ing deed and abstract of the follow- lot, piece parcel estate, appurte- of real belonging, county nances thereunto situate of Com- Oklahoma, wit, quar- anche and State the northwest (6), (1) north, range township ter of section six one (12) west, twelve party I. M. . And the said of the sec- part hereby agrees pay ond covenants and to said part, twenty-five dollars, of the first the sum of hundred $1,200.00 mortgage on the assumes now land and *3 following: in the manner paid, One dollar cash in hand receipt acknowledged, hereby whereof is bal- and the follows, twenty-four ninety-nine ance hundred and years, dollars on or before two with interest at the rate cent, . per per annum, payable annually of six on the whole remaining unpaid, sum taxes, assessments, from time to time pay and all to impositions may legally'
or be imposed upon subsequent levied or year said land to the 1907. in party And case of the failure of said of the.sec- part payments, perform ond to make either of the any part of into, hereby the covenants on his made and entered shall, option contract at party this of the of the part, determined, owing be forfeited and first and to the fact that we are unable ascertain to the amount of dam- time, ages mutually agreed payments it is this that all made on this contract shall party be retained of the part liquidation first in full satisfaction and of all dam- ages sustained, and part him said of the first right possession shall to re-enter have and take premises mutually agreed aforesaid. It that all
JANUARY
Opinion of the Court. agreements and herein contained shall' extend covenants executors, obligatory heirs, to tors, and be administra- assigns respective parties.” and Garretson, July, 1908, On the -21st who contract, assigned still the owner of the and said sold Gillam, below, E. O. who was the defendant error herein. The Gillam, said to E. O. from Francis Garretson acknowledged, legally which was is as follows: presents: I, all “Know men these That Francis Garretson, of, person as the owner holder agreement certain named article for deed quarter (*4) (6) northwest one of section six in town- range west, ship (1) (12) one north of M. and twelve I. containing sixty one hundred acres of dated 21st, 1908, George Marker, party March and between part, Garretson, party of the first and the said Francis part, subject of the second to all of the conditions in said .agreement, I, Garretson, article of the said Francis Gillam, of one E. paid, consideration in hand dollar O. and other valuable mentioned, consideration hereinafter hereby assign right, title, do all my and interest in and agreement said article of E. O. said following That, whereas, conditions: E. O. July, Gillam has 21st day D.A. entered into agreement Piercy F. one J. and F. M. assignor herein, build, per- material furnish constructing necessary dwelling form all labor a certain fully appear subject as will more in said Now, the conditions in said contract. if the F. said J. Piercy and F. M. perform Garretson shall keep all conditions, obligations part terms on their kept performed by *4 according and them to the terms contract, and conditions in said then this void, contract for deed shall be null and otherwise full force and virtue. £o OF OKLAHOMA. COURT
Marker v. Gillam. Garretson, I, whereof, Francis said “In witness July, day of 1908. my on this 21st set hand have hereunto “Francis Garretson.” alleges plaintiff that: delivery and the execution “The consideration assignment of the contract of and of the sale estate, by the said Francis Garretson real of said sale by performance said (E. Gillam), the faithful him O. was building contract, and en- made of a Garretson certain Garretson, F. J. into and between Francis tered 1908, July, Piercy, day of E. on the 21st and O. five-room of a certain for the construction and erection cellar, including dwelling, on lot to be built concrete Lawton, 56, with the city in accordance block plans T. F. specifications prepared and one made and Brodie, architect.” substance, is, alleges, in that he and further
Plaintiff of sale of purchased all times since he said been, July, 1908, day of has on 21st said sale, to all entitled of said owner as, for, rights thereunder. And benefits alleges plaintiff that: of said breach keep per- M. Garretson failed “The said F. building contract and failed and terms of said form neglected in accordance erect said house to construct and the same contract and deliver' the terms of said therein, provided but that clear all liens as free fact, obliged to, pay out plaintiff and did in was the said - prior $1,195.79 1st sum the March, M. F. which said sums said pay, said which sums his contract bound but compelled to pay order dis- claims, to be liens charge liens that were entitled and the lot said above-described situated, reason breach the same and that F. the said said contract the said M. *5 TERM, 771 JANUARY Opinion of the Court. plaintiff damages $1,195.79 suffered the sum of cent, per interest thereon per at the rate' of annum from day March,
the 1st 1909.”
For, as, and a breach of the contract of sale of the land, alleges: plaintiff plaintiff
“That before time within which the had right pay money the deed, to sum said and to receive such defendant, unlawfully and the knowl- edge or plaintiff, consent of the breached his said con- tract and sold and to F. transferred said land one W. Dillard, the sum of which was said deed executed day and delivered to said Dillard on the 28th July, 1908. conveyed That when said defendant said date, land W. F. on the Dillard said to. defendant was aware and well knew that said contract for deed was existence, legally assignable, and that the same was and conveyed knowledge defendant said land without plaintiff, thereby consent of the and his breached said and for deed his said act defendant failed refused, still refuses, comply fails and to convey his said to said land to said Francis Garretson, plaintiff. or to the on the That date when by defendant, on, said deed was made to said Dillard to- wit, day July, 1908, the 28th the said land of value $6,500 paid the sum of and the said Dillard said sum for deed, said as shown which deed of record said register county, the office of deeds of Comanche Okla., 94, page 61, in Book No. Deed Records said county, made, hereby to reference and the which same part is referred to and made hereof.” plaintiff alleges further that: “The land difference between the actual value of the price did, agreed to, at which defendant sell $4,001 obliged plaintiff said land that he was did, March, 1909, prior 1st pay $1,195.79, out the sum of said sums said OKLAHOMA. COURT OF '
Marker v. Gillam. contract bound F. M. compelled the' pay, sums said but which said discharge claims that the liens and pay in order build- above-described to be liens said entitled were situated; which the same was ing and the lot breach the said contract reason of the damages plaintiff suffered F. the said M. *6 $1,195.79, at the rate interest thereon in the of with sum cent, March, per per the 1st of of annum from 6 1909.” of damages, plaintiff prays because for
Wherefore $1,- contracts, of in sum of the the breach both of said cent, day of 195.79, per from the first with at 6 interest March, 1909. petition, which
A filed the demurrer was question principal exceptions overruled and saved. parties, of raised the defect the demurrer answered hereafter. The defendant will considered denial, general de- as a second and further first mostly matters, up many which amount set other fense general denials, specific included in the and would be here, except denial, necessary to mention will not be rather, fail- question misjoinder parties, or of vendee in plaintiff ure of make sale, will to the action. We however, questions the answer say, all raised- that fully The case was tried been have considered. in favor jury, verdict and there was interest, damages. for plaintiff Motion court, and defendant trial was overruled new brings error. defendant, appears that
It the record from . suit, George Marker, after the commencement died Marker, death, suggestion the ad- Albert of his JANUARY:
Opinion of the Court. estate, ministrator was substituted as defendant below, plaintiff and is in error herein. To a re- obtain case, plaintiff versal of the counsel for error in make assignments error, arguments, but in their as stated briefs, they group their propositions them into three following language: points “There are three main involved in case. building specifications The first that a contract with was the action had basis the cause of that Gillam against Garretson, trying hold and for which he liable, specifications in error were not evidence, grounds nor sufficient introduced laid evidence, secondary introduction was never attempted prove speci- the contents nor terms necessary fications. The second is that party Garretson was proceedings; being assignor to these he security contract performance for deed to for the Gillam as faithful building contract. The third undisputed evidence the case shows Piercy and specifications attached, had a they
whereby were to build *7 according complete furnish the material and a house Garretson, specifications; the contract and that to secure performance building contract, the faithful of said as- signed security deed; as collateral for the contract that Piercy build, Garretson and defaulted on their contract but the amount the of default never ascertained they parties to; an action were the therefore evidence is verdict, insufficient to sustain the should have for been defendant.” general complained
The first error is- of the failure of produce the and introduce in the evidence plans specifications describing written the material building and manner in which the to in as- referred the signment constructed, should be and the ad- secondary mission plans specifi- of evidence as to said OKLAHOMA. OF COURT
Marker v. Gillam. proper therefor. The answer foundation cations some evi- the record shows is that to that least, plans dence, were lost. that the written sufficiency proof; that passed upon the trial court facts, rule, findings and, under the well-established admitted, not secondary upon evidence will the con- court, for that reason that be disturbed tention cannot be sustained. is that of counsel
The second contention sale, also contract of who was the in the vendee contract, assignor of should been made have fall party proposition must stand or to the suit. That necessary question as to he was whether it, action, which, as view be answered to the we must unquestionably negative. as- The contract sale signed Gillam, security as collateral performance Gil- contract. faithful and his title was the lam absolute owner only completion full build- could be defeated ing, according of the contract. Garretson’s to the terms equity redemption, only an or such sur- interest was might plus, paying any, left after whatever if assignee, might damage sustain failure as the complete building. clearly rule laid down This comes within case Bank, C., Nat. 32 Okla. Ry. R. I. & P. v. Bankers’ Co. question 290, 122 is decisive of Pac. and that case bank, Simpson assigned In case hand. railway company against security, collateral his claim injuries freight damages received on account of The amount transportation contract. it in under written' ' The bank debt. face the claim exceeded the joining Simpson. *8 brought in its name without suit own 775 JANUARY. Opinion of the Court. assignable,
The court held that
the claim was
and that
the bank could maintain an action thereon in its own
name,
necessary party.
Simpson
a
and that
was not
here,
language
case, applicable
as follows:
used
is
(cid:127)
assigned
that,
first error
is
as the
“The
security,
as collateral
not vest in
was intended
plaintiff
did
permit
such
interest as would
name,
Simpson
maintain
action in its own
and that
necessary
agree
a
case.
do not
We
v.
contention.
In Minnetonka Oil Co. Cleveland Vit
180,
326,
Co.,
Brick
27
111 Pac.
Mr.
Okla.
Justice
rified
Williams,
delivering
court, says:
opinion
question
more serious
in this record to
determine
'The
assignable.
whether the contract was
At common law ho
assignable.
equity, however,
chose in action was
In
every
action,
tort,
except
assignable,
chose in
but
equities
might
subject
up against
to all
be set
it.
Corby,
(2d
;
353)
McCrum v.
v. Bes Line Constr.
23
99
Okla.
Pac.
776,
(N. S.) 597;
21
Marbury,
L. R. A.
Glenn v.
146 U.
499,
914,
Sup.
S.
12
Ct.
“Simpson’s against defendant, arising claim not pure tort, assignable. out of a 2 & Wilson’s Rev. 1903, 4163, 1909, (Comp. Ann. Stat. sections 4224 Laws 7349, ; Ry. K. 5558) C., sections Shutt, M. & O. Co. v. 96, 51, 870, 24 Okla. 104 Pac. Rep. 138 Am. St. 255; 2 1903, Ann. Cas. Wilson’s Rev. & Ann. St. sec. (Comp. 5560), provides: Laws sec. ‘An ex ecutor, administrator, guardian, express trustee of an trust, person, whom, name, inor whose a contract another, person expressly made for benefit of or a *9 OF OKLAHOMA.
776 COURT v. G-illam. Marker join- bring statute, may an action withont by authorized prose- person is for whose benefit it ing the with him in as upon may and be sued such name is sue cuted. Officers may law, by official bonds be sued authorized way.’ in same the by adopted construing was this statute before it
“In Kansas, v. us, in Walburn Chen Supreme the Court 657, deciding 352, that as- the Pac. in ault, 43 Kan. 23 against company could signee judgment a a railroad notwithstanding a name, that his' sue thereon in own persons, says: third reserved to interest was beneficial large assignment a indebt the was 'The consideration Bank, the or bank of Tiernan to Chenault’s edness pro agreed president; it the he was which was payment judgment applied be in should ceeds the attorney’s indebtedness, discharge to the of an assign judgment. The attached to lien had assignee absolute, in the is such as vest ment was legal in He such a beneficial interest title. had the whole bring he could an 'ac proceeds joining parties, .name, who other in own without tion his might agreement a share of be entitled to collateral Code, pro proceeds. 28 of the it Under section may brought “person aby an be vided that action in a contract is made for the or whose name benefit person whom * ** another, joining with him the assignee prosecuted.” The was it for whose benefit judgment, proceeds of the authorized receive complete protection to such as to afford against second action other plaintiffs error the persons in proceeds judgment, of the and to in the interested required assignee may to account. The whom the plaintiffs any or cut off from in error were not limited assignment, and the absence of of the defense reason assignee parties account cannot cause must to whom plaintiffs any In error. future embarrassment Norton, held that v. 3 Kan. where Williams assigned a beneficial interest note to one with same, understanding proceeds and with of the 1916. — Yol. JANUARY Opinion the Court. it, money person receive such
that he was to meaning interest, party in within the of the the real name, Code, might although he was sue his own pro- apply his own use the whole of the not entitled to 228; Rem., N. Brown, ceeds. Allen v. Y. Pom. sec. brought properly 132. The action was in the name assignee, prejudice plain- and no result could join parties tiffs error his failure to other judgment, inter- part proceeds ested in his allege liability failure to them.’ *10 here, “It is true v. as the case of Walburn Chen ault, supra, recovery plaintiff complete that a the is a protection against any to the defendant other claim which Simpson might assert, any and that defense which it might urge against might Simpson urge it likewise against plaintiff. the While there is some conflict jurisdictions other assignee as to may whether sue when the merely is intended as collateral se curity (4 99-101, Cyc. notes), previous we think the court, Supreme decisions this and of the Court of ,to construing statute, Kansas our are sufficient establish right assignee of such an to maintain action joining assignor.” apparent It foregoing case, be must from the cited, authorities therein that Garretson was not a nec- essary party, and there was no error in the court so hold- ing.
The third contention is that:
“The evidence in the case that shows Garretson and Piercy had a contract specifi- attached, whereby they cations were to build and furnish complete the material and according a house to the con- specifications; tract and that to secure the performance faithful of said building contract, assigned security collateral deed; that Garret- Piercy son and defaulted on their build, but ' OKLAHOMA. COURT OF
Marker Gillam. v. ascertained in never default was of the amount parties the evidence to. Therefore they action were verdict, judgment should to sustain insufficient have been for defendant.” sufficiency of simply goes proposition
This judgment jury and evidence to sustain verdict findings jury based of the court. A verdict support reasonably tending them will evidence Brokefield, 8 Okla. appeal. Lucas v. not be disturbed 284, 57 That has been established Pac. 166. rule might many great in this court. We followed in a cases carefully gone that we over here have further add case, entirely are satisfied briefs and record fully by the are verdict and sustained Many questions counsel have been raised evidence. error, has been (cid:127)for and the case briefed ability,, ordinary argued more than care and with much given opinion all con of this has them writer sideration, im apparent but it must be would practicable separately. court each one for the to discuss case,
Upon are of consideration of the whole we full committed, opinion prejudicial that no error has been *11 affirmed. should be Rehearing. Petition For On judgment in the lower court favor $1,195, per interest rate of 6 cent, annum, day March, per That from 1st 1909. judgment court on was affirmed this the 5th October, rehearing, 1915. On motion for opinion is in this: The modified in the district the sum of court is reduced to draw interest at cent, per per annum from the thereof, of 6 rate date . JANUARY.
City Sayre. of Ardmore v. January 27, is, in which was The case all 1913. other rehearing respects, affirmed further denied.
By the Court: ordered. It is so OF
CITY ARDMORE v. SAYRE. Opinion
No. 5176. Filed October 1915.
Rehearing January 25, Denied 1916.
(154 356.) Pac. 1. Appointee Appointing Power. Where OFFICERS —Removal of — holding appointment guilty an officer maladministration in power under malfeasance or office, general appointive as a rule the power removal, pro- carries it the inherent unless hibited law. 2. MUNICIPAL CORPORATIONS —Officers—Power to Remove. city provides city engi- Where a charter an officer known as city, provides engineer neer of said and also that “said shall appointed by mayor, by and with the consent of the board of city commissioners, and shall hold his office for a term of two years, removed, provided charter,” unless sooner provision officers, said charter contains no for the removal of provide held, the fact that the charter fails to for the re- city by implication moval of power officers inhibition mayor and board of -commissioners to remove city engineer city from such office. 3. An “officer is one' OFFICERS —“De Facto de facto” Officer.” though acts, officer, law, upon whose principles not those of a lawful policy valid, they justice, will hold so far as public persons, involve the interests of the and third where such duties and functions the office are exercised one who was possession it, in actual under color of title. 4. MUNICIPAL CORPORATIONS —Officers—“De Facto Officer”— person holding Illegally Appointed. Where one an office Person by legal appointment, claiming to be such officer de jure, person may possession fact that mere another take of said office, perform and der some of the office, board, duties and functions of said un- pretended appointment by public an- officer or acting plain provision body against a statute, and with-