Smith v. Sadler , 119 Okla. 230 ( 1926 )

Only one proposition is presented and argued for reversal of this case, that being that the judgment of the trial court is contrary to the evidence and not sustained thereby.

This is purely a fact case. The testimony for plaintiff tended to establish that the defendant S.W. Sadler listed the property in Chattanooga with the plaintiff Smith, for sale or trade, and that at the time of such listing he was informed that plaintiffs, G. B. Smith and W. L. Connelly, were acting together, but not as partners. It appears further from the testimony of plaintiffs that a man named Baugh sometime previously had listed with plaintiffs a farm owned by him, and had agreed to pay plaintiffs a commission in the event they succeeded in selling or trading said farm. It was also disclosed by plaintiffs' testimony that neither of the plaintiffs ever had any conversation with the defendant Lizzie Sadler, in reference to the listing of this property with them, nor in reference to the payment of any commission in event the property was sold or traded, notwithstanding their testimony further shows that they were advised by Lizzie Sadler, prior to making the trade, that the property was her sole and separate property. It was further shown by plaintiffs' testimony that Baugh paid them a commission by executing a note in their favor when the deal was closed, and that this note has been paid.

On the part of defendants the testimony tended to show that the property listed with plaintiffs by S.W. Sadler was the sole and separate property of Lizzie Sadler, and that she never agreed to pay the plaintiffs any commission, nor did she authorize her husband, S.W. Sadler, to make any such contract in her behalf, and that his listing of the property with plaintiffs was without her knowledge or consent.

In substance, the above abstract is thought to be a fair statement of the testimony upon the material question involved in the case, viz.: Was there a contract between plaintiffs and the owner of the property by which their services were engaged and agreed to be compensated? This being a jury case, and only tried to the court by agreement of the parties, the rule as to jury trials applies, and the judgment of the trial court must be affirmed if there is any evidence in the record reasonably tending to support the same. It is clearly evident from an examination of all of the testimony preserved in the record, that plaintiff never at any time had any contract or agreement with the defendant Lizzie Sadler to handle or sell her separate property, or to receive any commission for their services in so doing. Neither is there any evidence preserved in the record showing that S.W. Sadler acted as her authorized agent in the transaction on which plaintiffs base their claim, nor that they ever asked her to ratify any of the acts of her husband after learning prior to the consummation of the trade that she claimed to be the sole and separate owner of the property. There is affirmative proof on the part of plaintiffs that Baugh paid plaintiffs a commission for trading his farm to defendants, but no proof of any kind or characters to establish that Lizzie Sadler agreed to pay them a like commission in the same transaction.

There being evidence in the record reasonably tending to support the judgment of the trial court, the same must be and is in all things affirmed.

By the Court: It is so ordered.