Fitch v. Braddock

1923 OK 818, 219 P. 703, 93 Okla. 78, 1923 Okla. LEXIS 326

• Court: Supreme Court of Oklahoma
• Decided: October 23, 1923
• Docket: 11996
• Status: Published

Opinion

Opinion hy

MMXEY, C.

Plaintiff in error in his brief urges the first error assigned and insists that the demurrer to the evidence should have been sustained upon the grounds that the plaintiffs were not entitled to maintain this action, for the reason that it was transacting business under a fictitious name or names, or name not disclosing the names of all of its members, in compliance with the provisions! of the statutes on that subject. It is admitted that the plaintiff in error, Fitch, had no pleadings setting up this defense, and did not raise it in any .other way until he raised it hy demurrer to the evidence. We do not think this error is well taken. This court has in a number of eases held a noncompliance with the statute requiring partnerships to file a certifiiieate ¡giving the names of their partners is a defensive matter, and must be raised by some pleadings. It not being necessary for the plaintiffs to allege and prove that they have complied with such statutes; as the law presumes that they have complied with it, and it is a matter purely defensive. Swope v. Burnham, 6 Okla. 736, 52 Pac. 923; Baker v. L. C. Van Ness & Co., 25 Okla. 34, 105 Pac. 660; W. G. Blanchard & Co. v. Ezell, 25 Okla. 434, 106 Pac. 960; Smith v. Woods et al., 33 Okla. 237, 124 Pac. 1088; Oklahoma Fire Insurance Co. v. Waglster, 38 Okla. 291, 132 Pac. 1071. In view of the holdings of this court in the cases cited, it is not necessary to discuss, this assignment of error any further. The second assignment of error complains of the court giving instruction No. 3, which is as follows :

“You are further instructed, gentlemen of the jury, that if you find and believe that the defendant listed his property with plaintiffs for sale and that plaintiffs procured a purchaser for said property or were the procuring cause, through which defendant Isold his property, then the plaintiff would be entitled to recover; and in this connection you are further instructed that if you find the evidence that plaintiff, while' acting .as agent for defendant, furnished a Mrs. Stephens her first information in respect to the location, name of owner and price of defendant’s property, and that the .information so given resulted in bringing about negotiations for the sale of the property to Mr. and Mrs. Stephens, then your verdict must be for the plaintiff in the sum of $125, and the fact that the defendant closed the deal himself, without: actual knowledge of plaintiffs’ acts and at a lower price, is not material to the question before you.”

We do not think this instruction is open to the objections made to it, and taken with the ■ other instructions given by the court, we do not think the plaintiff in error hals any just cause to complain.

The. third assignment of error is that the court erred in refusing to give special! instructions offered by the plaintiff in error. We have examined these instructions offered by plaintiff in error and think that the court did right in refusing them. They do not state the 'aw correctly and would rather confuse the jury than enlighten them. The instructions given by the court state the issues and the law governing the case fairly, and the jury found for the defendants in error, and this court in a number of cases lias held that where the case is fairly submitted to the jury by proper instruction, that this court will not disturb the verdict unless it is clearly against the weight of the evidence; and in this case, we cannot say that the verdict is not supported hy the evidence. These broker commission contracts have been before this court a number of times, and we call attention to a few cases, which wb think are decisive of the question herein involved. In the case of Washington v. Colvin, 55 Okla. 774, 155 Pac. 251, this court quotes with approval section 14$, Mechera-on Agency, as follows:

“He who would avail himself of the advantages arising from the act of another in his behalf must ■ also ássume the responsibilities. If the principal has knowingly appropriated and enjoyed the fruit and benefits of an agent’s act, he will not afterwards be heard to say that the act was unauthorized. One who voluntarily accepts the proceeds of an act done by one assuming, though without authority, to be his agent, ratifies the act, and takes it as his own with all its burdens, as well as aM •its benefits. He may not take the benefits «and reject tbe burdens, but be must either •accept them or reject them as a whole.”

Again, in Treese v. Shoemaker, 80 Okla. 235, 195 Pac. 766, this court said:

"A broker employed to secure a lease is entitled to his commissions if during the continuance of his agency he is the efficient or procuring cause of the execution of the lease, though the actual agreement for the lease is made by the principal with the owner of the land; and the broker will be regarded the procuring efficient cause if his efforts are the foundation upon which the negotiations resulting in the execution of the lease are begun.”

And the case of Bohnefield v. Wahl et al., not yet officially reported, but found in Okla. App. Court Reporter of May 24, 1923, at page 480. The case is on all fours with the case under consideration and is eon- . elusive of this case. The judgment of the trial court is therefore affirmed.

-By the Court: It ip so ordered.