HEFNER, J.
This is an action brought in the district court of Osage county by Dessa L. Hanna against P. R. Williams and others to recover commission for the sale of oil properties.
The defense was that she was not authorized to sell the properties by any of the defendants except Williams, and that she was not the procuring cause of the sale.
Defendants further alleged that a sale of the property was consummated through the efforts of F. O. Stewart; that Stewart thereafter brought an action in the district court of Tulsa county against defendants to recover a commission; that he succeeded in obtaining a judgment against them, which judgment was, on appeal, affirmed by this court (Winemiller v. Stewart, 125 Okla. 230, 257 P. 288) ; and that they .thereafter paid the judgment.
The trial was to a jury, resulting in a verdict and judgment in favor of plaintiff for the sum of $34,125. At the close of the evidence defendants requested the trial .court to direct a verdict in their favor. The denial of this request is one of the main assignments of error, and, as we view the case, is the only assignment which requires consideration, as, in our opinion, the request should have been granted.
The evidence on behalf of plaintiff, in substance, establishes the following facts: That plaintiff inquired of H. H. Brenner, one of the defendants and an owner of a small interest in the properties here involved, as to whether he had or knew of any oil producing properties for sale. Brenner advised her that he had a small interest in certain properties, but that he had no authority to authorize her to sell the same, and referred her to defendant P. R. Williams and advised her that he was the only person connected with the properties who could deal with her or handle and deliver the properties. She thereafter communicated with Williams, and he authorized her to find a purchaser for the properties for a consideration of $800,000, and agreed to pay her a 5 per cent, commission. Thereafter she engaged James G. Glenn, Mrs. E. R. Ash, and R. J. Eli, oil brokers at Tulsa,
to assist her in selling the properties. These brokers, after informing themselves as to the condition of the properties, made maps thereof and presented them to' Mr. Day, who, ■though at that time an employee of the Tidal Oil Company, had no authority to make a purchase of the properties. His duty was to go over propositions, eliminate those that he did not think the company would be interested in, and submit to the proper officials those that he thought the company would be interested in. Plaintiff received from Williams the following letter:
“Wynona, Okla., Oct. 25, 1923.
“Miss Hanna,
“Pawkuska, Okla.
“Dear Miss Hanna: Relative to our leases in 24-9, west of Wynona, the 640-acre tract, beg to advise that, if any one reports to you that they have this property listed for six hundred thousand dollars, they are telling something that is absolutely false.
“We have never offered this property for anything like that figure, have turned down a cash offer of eight hundred thousand dollars, so the price I made you is the least cash offer we will consider.
. “In connection therewith, beg to advise that a good well was brought in offsetting our east line yesterday evening. It is too early to know what it will make, but it has all the appearances of a good producer.
“This makes all our holdings look much better, as it almost proves the entire tract.
“Again assuring that nothing less than the price I gave you will interest us in any manner, beg to remain,
“Yours very truly,
“P. R. Williams.”
This letter, together with, other information as to production and logs of the wells, was thereafter presented by Mr. Eli to Day, who, after examining the data furnished, stated that his company was interested in the properties, but that he could give no definite answer for the reason that Mr. Haskell was then out of town. Thereafter, and on the 17th day of November, 1923, the Tidal Oil Company purchased the properties for the sum of $700,000.
The evidence on behalf of defendants is, in substance, as follows : Sometime in the early part of November, Prank Haskell, who was then in New York and president of the Tidal Oil Company, arrived in the city of Tulsa. On his arrival he saw P. C. Stewart, a former employee of the company, and informed him that the company was interested in procuring oil-producing properties and engaged him to locate and negotiate for such properties. Stewart thereafter got in touch with J. H. Winemiller and L. W. Baxter, who also owned an interest in the properties involved, and finally succeeded in closing a deal for the purchase thereof for the sum of $700,000. It appears, however, that one of the parties interested in the properties refused to sell his interest and the value of this interest was deducted from the purchase price, making the price for the interest sold the sum of $682,500. Stewart testified that he was employed by Haskell to purchase the properties at the lowest price possible; that he was not working in the interest of the owners of the properties, but informed them that he was acting in the capacity of a middleman, and that in the event of a sale he expected a commission, and that defendants agreed to pay him a 5 per cent, commission.
Defendants also conclusively establish that Day had no authority to enter into a contract to purchase the properties. The evidence is also conclusive that at the time Stewart commenced negotiations with Wine-miller and Baxter for the purchase of the properties, the officers of the company who had authority to make the purchase had no knowledge of the prior negotiations between .plaintiff and Day. Day testified that he did not seriously consider the proposition submitted to him by plaintiff, and that he did not submit this proposition to Haskell oían y other official of the company. This evidence is uncontroverted and is corroborated by Haskell and other officials. It is not claimed that plaintiff or her associates submitted the properties to any one connected with the company other than Day. In our opinion, the evidence is insufficient to establish the fact that plaintiff was the procuring cause of the sale. The property was purchased by the Tidal Oil Company through its agent, Stewart, without knowledge of the prior dealings and transaction between plaintiff and her associates and Day; The deal was closed without assistance from pjaintiff and the sale was not induced, by or •through her efforts. She is therefore not entitled to recover.
There is an allegation in plaintiff’s petition that defendant Williams gave her the exclusive right to sell the. property. This allegation is not supported by the evidence. Plaintiff, however, contends that the question of the sufficiency of the evidence to support a verdict in her favox- is foreclosed by what was said on a former appeal of the case. Hanna v. Williams, 128 Okla. 134, 261 Pac. 923. The appeal was from an order granting a new trial. In affirming the judg
xnent, the Commissioner writing the opinion, among other things, said:
Free access — add to your briefcase to read the full text and ask questions with AI
HEFNER, J.
This is an action brought in the district court of Osage county by Dessa L. Hanna against P. R. Williams and others to recover commission for the sale of oil properties.
The defense was that she was not authorized to sell the properties by any of the defendants except Williams, and that she was not the procuring cause of the sale.
Defendants further alleged that a sale of the property was consummated through the efforts of F. O. Stewart; that Stewart thereafter brought an action in the district court of Tulsa county against defendants to recover a commission; that he succeeded in obtaining a judgment against them, which judgment was, on appeal, affirmed by this court (Winemiller v. Stewart, 125 Okla. 230, 257 P. 288) ; and that they .thereafter paid the judgment.
The trial was to a jury, resulting in a verdict and judgment in favor of plaintiff for the sum of $34,125. At the close of the evidence defendants requested the trial .court to direct a verdict in their favor. The denial of this request is one of the main assignments of error, and, as we view the case, is the only assignment which requires consideration, as, in our opinion, the request should have been granted.
The evidence on behalf of plaintiff, in substance, establishes the following facts: That plaintiff inquired of H. H. Brenner, one of the defendants and an owner of a small interest in the properties here involved, as to whether he had or knew of any oil producing properties for sale. Brenner advised her that he had a small interest in certain properties, but that he had no authority to authorize her to sell the same, and referred her to defendant P. R. Williams and advised her that he was the only person connected with the properties who could deal with her or handle and deliver the properties. She thereafter communicated with Williams, and he authorized her to find a purchaser for the properties for a consideration of $800,000, and agreed to pay her a 5 per cent, commission. Thereafter she engaged James G. Glenn, Mrs. E. R. Ash, and R. J. Eli, oil brokers at Tulsa,
to assist her in selling the properties. These brokers, after informing themselves as to the condition of the properties, made maps thereof and presented them to' Mr. Day, who, ■though at that time an employee of the Tidal Oil Company, had no authority to make a purchase of the properties. His duty was to go over propositions, eliminate those that he did not think the company would be interested in, and submit to the proper officials those that he thought the company would be interested in. Plaintiff received from Williams the following letter:
“Wynona, Okla., Oct. 25, 1923.
“Miss Hanna,
“Pawkuska, Okla.
“Dear Miss Hanna: Relative to our leases in 24-9, west of Wynona, the 640-acre tract, beg to advise that, if any one reports to you that they have this property listed for six hundred thousand dollars, they are telling something that is absolutely false.
“We have never offered this property for anything like that figure, have turned down a cash offer of eight hundred thousand dollars, so the price I made you is the least cash offer we will consider.
. “In connection therewith, beg to advise that a good well was brought in offsetting our east line yesterday evening. It is too early to know what it will make, but it has all the appearances of a good producer.
“This makes all our holdings look much better, as it almost proves the entire tract.
“Again assuring that nothing less than the price I gave you will interest us in any manner, beg to remain,
“Yours very truly,
“P. R. Williams.”
This letter, together with, other information as to production and logs of the wells, was thereafter presented by Mr. Eli to Day, who, after examining the data furnished, stated that his company was interested in the properties, but that he could give no definite answer for the reason that Mr. Haskell was then out of town. Thereafter, and on the 17th day of November, 1923, the Tidal Oil Company purchased the properties for the sum of $700,000.
The evidence on behalf of defendants is, in substance, as follows : Sometime in the early part of November, Prank Haskell, who was then in New York and president of the Tidal Oil Company, arrived in the city of Tulsa. On his arrival he saw P. C. Stewart, a former employee of the company, and informed him that the company was interested in procuring oil-producing properties and engaged him to locate and negotiate for such properties. Stewart thereafter got in touch with J. H. Winemiller and L. W. Baxter, who also owned an interest in the properties involved, and finally succeeded in closing a deal for the purchase thereof for the sum of $700,000. It appears, however, that one of the parties interested in the properties refused to sell his interest and the value of this interest was deducted from the purchase price, making the price for the interest sold the sum of $682,500. Stewart testified that he was employed by Haskell to purchase the properties at the lowest price possible; that he was not working in the interest of the owners of the properties, but informed them that he was acting in the capacity of a middleman, and that in the event of a sale he expected a commission, and that defendants agreed to pay him a 5 per cent, commission.
Defendants also conclusively establish that Day had no authority to enter into a contract to purchase the properties. The evidence is also conclusive that at the time Stewart commenced negotiations with Wine-miller and Baxter for the purchase of the properties, the officers of the company who had authority to make the purchase had no knowledge of the prior negotiations between .plaintiff and Day. Day testified that he did not seriously consider the proposition submitted to him by plaintiff, and that he did not submit this proposition to Haskell oían y other official of the company. This evidence is uncontroverted and is corroborated by Haskell and other officials. It is not claimed that plaintiff or her associates submitted the properties to any one connected with the company other than Day. In our opinion, the evidence is insufficient to establish the fact that plaintiff was the procuring cause of the sale. The property was purchased by the Tidal Oil Company through its agent, Stewart, without knowledge of the prior dealings and transaction between plaintiff and her associates and Day; The deal was closed without assistance from pjaintiff and the sale was not induced, by or •through her efforts. She is therefore not entitled to recover.
There is an allegation in plaintiff’s petition that defendant Williams gave her the exclusive right to sell the. property. This allegation is not supported by the evidence. Plaintiff, however, contends that the question of the sufficiency of the evidence to support a verdict in her favox- is foreclosed by what was said on a former appeal of the case. Hanna v. Williams, 128 Okla. 134, 261 Pac. 923. The appeal was from an order granting a new trial. In affirming the judg
xnent, the Commissioner writing the opinion, among other things, said:
“The record discloses that the court granted the new trial on the sole ground that the evidence was insufficient to support the verdict. The evidence is conflicting, and there is no doubt that there was sufficient evidence upon which to submit the case to the jury. The trial court would have committed error had it sustained a demurrer to the evidence.
‘LAs the case must be retried, we refrain from discussing the evidence only to say that a verdict, either way, when approved by the trial court, would without doubt be upheld on appeal.”
■ These statements, though merely dictum under the evidence then presented, were probably correct. The evidence is stronger against plaintiff on this trial than it was on the former trial. Day and other officials of the company who testified at the present trial did not testify at the former -trial. Frank Haskell testified to additional facts to those testified by him on the former trial. It was not made clear on the former trial that at the time the Tidal Oil Company commenced negotiations with defendants for the purchase of the property it had no knowledge of the proposition submitted by plaintiff to Day for the sale of the property. The evidence on the former trial showed that shortly after plaintiff’s proposition for sale of the properties was submitted to Day and .was advised by Day that he could not give a definite answer for the reason that Haskell was out of town, Haskell appeared in the city of Tulsa and Immediately got in touch with Stewart, who, a
s
agent for Tidal Oil Company, closed a contract in behalf of the company for the purchase of the properties. This evidence and the circumstances surrounding the transaction not having been explained, the reasonable inference was that negotiations for the purchase of the properties were commenced by the Tidal Oil Company through its agent, Stewart, upon the proposition submitted by plaintiff to Day. Defendants, upon retrial, introduced evidence that rebutted that inference. They have conclusively shown that, at the time the properties were purchased by the Tidal Oil Company, its purchasing officers had no notice or knowledge of the proposition submitted by plaintiff to Day. This, we think, constitutes a material difference in the evidence.
Judgment is reversed, and the cause remanded, with directions to enter j'udgment in favor of defendants.
.LESTER, O. J.. CLARK, Y. O. J., and OULLISON, SWINDALL, and KORNEGAY, JJ., concur. RILEY, J., dissents. ANDREWS, J., absent. McNEILL, J., absent and not participating.