(227 P.) Where such defense is interposed, the court should go no further than to substantially instruct the jury that if they believe, from all the evidence and from all the circumstances connected with the case, that the plaintiff, by his own negligent acts, has contributed to the proximate cause of the injuries in question, and thereby brought about such injuries, then as a matter of law he cannot recover. Appeal from District Court, Tulsa County; Albert C. Hunt, Judge. Action by Harold B. Goodrich against City of Tulsa and another. From a judgment for the named defendant, plaintiff appeals. Reversed and remanded for new trial. McGuire & Marshall, of Tulsa, for plaintiff in error. I. J. Underwood and Harry L. S. Halley, both of Tulsa, for defendant in error, City the plaintiff in error to recover rent alleged | 2. Trial 194(13) Form of instruction on to be due on certain lands in Seminole contributory negligence authorized. county. The case was tried to the court without a jury and judgment returned in favor of the defendants in error. The parties will be referred to as plaintiffs and defendant as they appeared in the trial court. The plaintiffs allege that they rented 40 acres of land to the defendant for the year 1919 for crop rent, to be paid by the payment of one-third of the corn and one-fourth of the cotton grown on the premises for that year, and alleged that the defendant had refused to pay the rent. It was the contention of the defendant that there was no contract between the plaintiffs and the defendant. He admitted occupying the land for 1919, but claimed that he occupied the same under written contract with another person, and that, even though plaintiffs were entitled to rent for 1919, there was no privity of contract between the plaintiffs and the defendant, and that the evidence was therefore not sufficient to support this action. An examination of the evidence discloses that there was a disputed question of fact as to whether the plaintiffs and defendant entered into a verbal contract for the land for the year 1919. This question was determined in favor of the plaintiffs, and since this was a jury case tried to the court, and there is eviderce reasonably tending to support the finding of the trial court on this controverted question of fact, the same will not be disturbed on appeal. Having reached this conclusion, it is unnecessary to consider the other questions presented by the defendant, as a consideration thereof would be necessary only In the event of insufficient evidence to support the finding as to the existence of the contract. The judgment of the trial court is affirmed. JOHNSON, C. J., and NICHOLSON, KENNAMER, and MASON, JJ., concur. GOODRICH v. CITY OF TULSA et al. (No. 13538.) (Supreme Court of Oklahoma. May 7, 1924. Rehearing Denied June 17, 1924.) (Syllabus by the Court. of Tulsa. HARRISON, J. This was an action by Harold B. Goodrich against the city of Tulsa, and the First Christian Church of Tulsa, for injuries alleged to have been received by the negligent stretching of a rope by defendants, more particularly the officers of the city of Tulsa, across one of the streets in Tulsa, to wit, Boulder avenue. The defendant First Christian Church was eliminated from the action by the court below on the ground of lack of evidence of negligence on its part, and is eliminated here also, but made a party defendant in error, as plaintiff in error says in his brief, out of abundance of caution. But this appeal is in fact from the judgment of the lower court in favor of the defendant city of Tulsa, and revolves around the following instruction, viz. instruction No. 6 of the trial court, which is as follows: "You are instructed that there has been introduced in evidence an ordinance of the city of Tulsa with reference to the speed of cars at the intersection of streets; and, if you find from the evidence in this case that the plaintiff herein violated said ordinance, and that his violation thereof, or his failure to observe any of the provisions thereof, either caused, or in any manner contributed to, his injury, then he cannot recover in this case." The foregoing instruction grew out of the following issues made by the pleadings, to 1. Trial 194(15)-Instruction certain acts wit, plaintiff, Goodrich, alleged that withconstitute contributory negligence errone-out any fault or negligence on his part, he ous. The very fact that the Constitution has declared the defense of contributory negligence or assumption of risk to be a question of fact to be found by the jury, necessarily implies that the court should declare the law applicable to such fact, but it is error for the court to instruct a jury that any certain fact or state of facts or circumstances constitute contributory negligence. drove his automobile into a rope which was Defendant answered admitting that the rope was stretched across the street, and that no other signal was given, but denying that any provision of the city ordinance required For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 7 any further signal or warning, and alleging | [2] It would be safer for the trial court, also that plaintiff, at the time he received where the defense of assumption of risk or his injuries, was driving at a rate of speed in violation of a city ordinance, and that plaintiff's injuries, if any, were due to his own violation of said city ordinance, by exceeding the speed limit of such ordinance, for that if plaintiff had been driving within the limit of speed prescribed by such ordinance, he could have seen such rope in time to have stopped his car and thereby saved himself from the injuries alleged to have been received. There was conflicting evidence as to the rate of speed at which plaintiff was driving, but such evidence is immaterial to a decision of the case as presented here for the reason that, as heretofore stated, the judgment revolves around the correctness or incorrectness of the foregoing instruction. Plaintiff in error contends that said instruction invades the true province of the jury in such questions, in that it is not in accord with section 6, art. 23, of the Constitution, which reads as follows: "The defense of contributory negligence or of assumption of risk shall, in all cases whatsoever, be a question of fact, and shall, at all times, be left to the jury." Were we personally called upon to give what we personally believe to be a correct interpretation of the foregoing provision of the Constitution, we would say that, the defense of contributory negligence or of assumption of risk shall, in all cases whatsoever, be a question of fact, and shall, at all times, be left to the jury. While in our opinion the framers of the Constitution have declared a pure question of law to be a question of fact, yet it has so declared, and the sovereignty of the state has adopted such provision, and we know no words by which the intention could be made plainer than by the words used in the foregoing provision. There are no ambiguities in said provision, and in our opinion the intention of the framers thereof could not be made plainer by English words. [1] Yet the very fact that the Constitution has declared the defense of contributory negligence or assumption of risk to be a question of fact, to be found by the jury, necessarily implies that the court under its duty should declare the law applicable to such fact. Such has been the declaration of this court in C. R. I. & P. R. R. Co. v. Duran, 38 Okl. 719, 134 Pac. 876; Osage Coal & Mining Co. v. Sperra, 42 Okl. 726, 142 Pac. 1040; St. L. & S. F. Ry. Co. v. Long, 41 Okl 177, 137 Pac. 1156, Ann. Cas. 1915C, 432; St. L. & S. F. Ry. Co. v. Hart, 45 Okl. 659, 146 Pac. 436. But as to what was held in Sweet v. Henderson (Okl. Sup.) 178 Pac. 666, and in numerous other cases, it is error for the court to instruct a jury that any certain fact or state of facts or circumstances constitute contributory negligence. contributory negligence is made to instruct the jury, substantially, that if they believe from all the evidence and from all the circumstances connected with the case, that plaintiff, by his own negligent acts, has contributed to the proximate cause of the injury in question, and thereby brought about such injury, then as a matter of law he cannot recover. But the foregoing instruction is not thus free of invasion of the province of the jury under the foregoing section of our Constitution, in that it might be taken tending to limit the jury to certain facts or circumstances, and for the reasons herein given the judgment should be reversed and cause remanded for another trial, not inconsistent with the views herein expressed. Reversed and remanded. JOHNSON, C. J., and WARREN, LYDICK, and GORDON, JJ., concur. WICHITA MILL & ELEVATOR CO. v. NA. (Supreme Court of Oklahoma. April 1, 1924. (Syllabus by the Court.) 1. Chattel mortgages 17, 129-Chattel mortgage creates lien, but conveys no title; lien of second mortgage continues, unless waived, until debt paid or first mortgage foreclosed. In this state a chattel mortgage does not convey title to the property, but only creates a lien thereon. The owner of property may execute a mortgage on property on which there is a first mortgage, and the second mortgage acquires a valid lien, subject to the lien of the first mortgage, which lien continues, unless waived, until the debt which it secures is paid, or until the first mortgage is foreclosed according to law. gagor with consent of first, but without consent of second, mortgagee does not foreclose second mortgage. A sale by the mortgagor, with the consent of the first mortgagee, but without the consent of the second mortgagee, and without notice to him, did not foreclose the lien of the second mortgage, although the sale was for the full value of the property. 3. Chattel mortgages 225 (2)-Second mortgagee held entitled to maintain action against purchaser of mortgaged property for conver sion. A purchaser of mortgaged chattels, by a person having notice, either actual or constructive, of the mortgage of plaintiff, from the mortgagor, with the consent of the holder of a first mortgage, takes the same subject to plaintiff's mortgage. After default, the plain For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 1 Okl.) WICHITA MILL & ELEVATOR CO. v. NATIONAL BANK OF COMMERCE 93 the title to the mortgaged property remained in the mortgagor, the plaintiff acquired a valid lien under the mortgage executed to it, subject only to the lien of Oxford. The lien of the plaintiff, unless waived, continued until the debt, which it secured, was paid, or until the first mortgage was foreclosed according to law. A sale by the mortgagor with the consent of the first mortgagee without the consent of the second mortgagee, and without notice to him, did not foreclose the Appeal from District Court, Tillman Coun- lien of the second mortgage, although the ty; Frank Mathews, Judge. COCHRAN, J. This action was brought by the defendant in error to recover damages from the plaintiff in error for the conversion of certain wheat, upon which the defendant in error had a mortgage. The parties will be referred to herein as plaintiff and defendant as they appeared in the trial court. On December 4, 1920, J. M. Masoner executed a mortgage to the plaintiff on 300 acres of wheat growing on land belonging to Ivan Oxford. Oxford, as landlord, was entitled to one-third of the wheat grown by Masoner on the land belonging to Oxford, and had a landlord's lien on the crop to secure the rent. Oxford also was the owner of a chattel mortgage on the interest of Masoner in the wheat, which was prior to the mortgage of the plaintiff. On July 8, 1921, Masoner, with the consent of Oxford, sold the wheat to the defendant. Prior to the payment of the purchase price of the wheat the plaintiff notified the defendant of its mortgage, and that it would be held liable for the amount thereof. The defendant refused to settle with plaintiff for his mortgage, and insisted that it had purchased the wheat from the person entitled to sell it, and had paid therefor when the plaintiff instituted this suit. Judgment was rendered for the plaintiff, and the defendant has appealed. sale was for the full value of the property. In 11 C. J. 706, we find the following statement: "Except in those jurisdictions in which the mortgage vests legal title in the mortgagee, a sale by a mortgagor of chattels, in whom is the legal title, with the consent of the first mortgagee without notice to subordinate lienholders, does not foreclose their liens, although the sale is made for the full value of the property, and the proceeds are applied to the payment of the debt secured by the first lien." [3] In the instant case the defendant, having purchased the wheat from the mortgagor with the consent of the first mortgagee, and with notice, either actual or constructive, of the mortgage of the plaintiff, acquired only the interest of the mortgagor and first mortgagee, and held the wheat subject to the plaintiff's mortgage. After default. the plaintiff was entitled to maintain an action against the purchaser for the wrongful conversion of the property, purchased by him. [4] The defendant contends that the court erred in directing a verdiet for the plaintiff, because the defendant was entitled to have the jury pass on the question of the amount of damages sustained by the plaintiff; that the vital question for determination was the value of the property at the date of the conversion, and that was a question of fact to be determined by the jury. The only evidence introduced in the case as to the value of the wheat was the amount which was paid by the defendant therefor, and this was accepted by the court as the market value of the same at the date of the conversion. Since there was no conflict in the evidence in this regard, or on any other question involved in the case, there was no question of [1, 2] The defendant contends that the fact to be determined by the jury, and the mortgagor, with the consent of the prior court properly instructed a verdict. The demortgagee, Oxford, had a right to sell the fendant contends, however, that the testiproperty, and the defendant, having purchas- mony as to the amount paid by defendant for ed the same and paid the entire purchase the wheat was not admissible to prove the price to the party entitled to receive the market value of the wheat, and there was same, was not guilty of conversion. In this no competent evidence as to the market value state a chattel mortgage does not convey the of the same, and, for that reason, it was error title to the mortgaged property, but only to instruct the verdict for the plaintiff. Evicreates a lien thereon. Litz v. Exchange dence of the amount for which the wheat Bank, 15 Okl. 564, 83 Pac. 790; Nicholson sold was admissible as tending to prove its v. Bynum, 62 Okl. 167, 162 Pac. 740. Since value, and was sufficient to establish the For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes market value in the absence of other evi-error, as plaintiffs, sued W. E. Combs for dence. 22 C. J. 141; Guthrie Mill & Eleva- $500 broker's commission on sale of real estor Co. v. Thompson, 89 Okl. 173, 214 Pac. tate. Parties will be referred to as they 716. thus appeared. Judgment on verdict was It is our opinion that the judgment should for plaintiffs for $200. be affirmed, and it is so ordered. [1] 1. The first assignment is that the court erred in overruling defendant's motion JOHNSON, C. J., and HARRISON, NICH- to dismiss the cause for failure of plaintiffs OLSON, and MASON, JJ., concur. COMBS v. LANGSTON INV. CO. (Supreme Court of Oklahoma. March 11, 1924. (Syllabus by the Court.) to comply with the statute governing fictitious partnerships in order to maintain an action. The record shows that the plaintiffs filed petition in this action without such compliance; that motion to dismiss on that ground was by the court sustained; that plaintiffs did comply and filed proof with the court clerk and thereafter procured alias summons to be served on defendant; that thereafter the parties filed a stipulation in court that, prior to the sustaining of said motion to dismiss by the court, plaintiffs had complied; that thereafter defendant, among Section 8143, Comp. St. 1921, requires part- other things, pleaded noncompliance, ners doing business under fictitious name to file certificate of partnership, publication, etc., in which plaintiffs replied by general denial; order to maintain an action. Plaintiffs com- that the cause was tried several months aftplied with said statute after filing petition and er such compliance, and defendant introseveral months before trial, defendant stipulat-duced no evidence whatever of noncompliing to that effect. Held, to be a sufficient com-ance. The contention of defendant in this pliance with the statute. I. Partnership 64-Compliance with statute as to filing certificate of partnership after action brought held sufficient. 2. Brokers 57 (2)-Purchase on negotiations begun by brokers renders owner liable for commission. Defendant listed his property for sale with plaintiffs as brokers. Plaintiff exhibited the property to the purchaser's wife, advising that defendant owned same and the price. The pur chaser on such information from his wife ne- The jury returned a verdict for plaintiffs for $200. Under the record, if verdict was for plaintiffs, same should have been for $500. Held, the returning of such smaller verdict was not error available to defendant, as only the plaintiffs should be heard to complain thereof. Commissioners' Opinion, Division No. 2. Appeal from District Court, Carter County; B. C. Logsdon, Judge. Action by the Langston Investment Company against W. E. Combs. From a judgment for plaintiff, defendant appeals. Affirmed. to behalf is palpably untenable. Counsel for defendant seems to go on the theory that the petition could not be filed before compliance. Where publication is made and certificate thereof filed and pleaded long before the day of trial, the terms of the statute are met. Bleecker v. Miller et al., 40 Okl. 374, 138 Pac. 809; Bolene Refining Co. v. Zobisch Oil Co. (No. 12410) 224 Pac. 942, not officially reported. A fortiori, since defendant stipulated long before trial that the statute had been complied with, he cannot complain. [2] 2. The next error assigned is that the court should have sustained defendant's demurrer to the evidence, for that plaintiffs did not make out a cause of action on contract or under quantum meruit for reasonable value of services. Defendant signed and delivered a written listing of said property, describing same, stating price as $10,500, but not specifying the commission. Plaintiffs alleged that they advertised and offered said property for sale and showed same to one Braughton, advising him of the said price and the name of the owner, the defendant; that thereafter said Braughton entered into negotiations with and purchased said property from the defendant for $10,000; that such sale was due to the efforts and information given by plaintiffs; and that plaintiffs Wm. G. Davisson, of Ardmore, for plaintiff were entitled to a commission of $500 for in error. making said sale. One of the plaintiffs, Brown, Williams & Brown, of Ardmore, Langston, testified that pursuant to said for defendant in error. written listing he drove the wife of the purchaser in front of the property, advising her ESTES, C. Langston Investment Com- that it belonged to defendant and the price; pany, a copartnership, composed of E. H. that said wife stated that her husband would Langston and O. W. King, defendants in not pay that much, but stated to Langston, For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (227 P.) "You show him this, and I will stay with you tial rights of the party appealing. Under on it"; that a few days thereafter the said this record, it seems that a verdict other wife stated to him that defendant would sell than for the plaintiffs could not have been the said property for $10,000 and did not see rightfully rendered. Dunn v. Modern Foundany necessity for paying $10,500; that Lang-ry & Machine Co., 51 Okl. 465, 151 Pac. 893; ston then told the purchaser and his wife if Stacy v. Browne (No. 14246) 219 Pac. 336, they could buy the property cheaper from de- not officially reported. fendant to do so; that thereafter, and on the same day, said purchaser and his wife did bargain with defendant for the property at $10.000; that the second day thereafter defendant came to the office of plaintiffs, stated he had decided not to sell his property and would not sell it. Mrs. Braughton testified, in substance, that Langston first showed the property to her. Mr. Braughton testified, in substance, that his wife told him about the property and that he closed the purchase himself directly with defendant and without the aid of Langston. Schlegel v. Fuller, 48 Okl. 134, 149 Pac. 1118, holds: "If an owner of real estate lists his property with a real estate broker, and then sells directly, at a reduced price, to a purchaser the broker had found, and with whom he was negotiating a sale, without having introduced him to his principal, then the owner is liable to the broker for a commission on the price received." See Doub & Co. v. Taylor, 48 Okl. 713, 150 Pac. 687; Roberts v. Markham, 26 Okl. 387, 109 Pac. 127. The evidence referred to conflicted with the evidence of defendant. However, the same reasonably supports the verdict, and, under the well-known rule, cannot be disturbed here. The foregoing was ample evidence to carry the case to the jury. Sharum V. Sharum, 82 Okl. 266, 200 Pac. 176. Under the foregoing, it is unnecessary to consider the contention of defendant that the verdict and judgment are contrary to the law and evidence. It is unnecessary to consider alleged error of the court in refusing to give the instructions requested by defendant, since same were covered by the instructions given. The judgment of the trial court should be and is affirmed. SMITH MOTOR CO. v. BUTTON. (Supreme Court of Oklahoma. March 11, 1924. (Syllabus by the Court.) 1. Appeal and error 1001 (1)—Judgment mission of an issue of fact to the jury under Record examined; held, there is sufficient competent evidence to support the verdict of the jury. Commisioners' Opinion, Division No. 4. Appeal from County Court, Tulsa County; Z. I. J. Holt, Judge. Action by P. A, Button against the Smith Motor Company. From a judgment for plaintiff, defendant appeals. Affirmed. Woodard & Westhafer, of Tulsa, for plaintiff in error. [3] 3. Defendant also complains that plain. tiffs were entitled to recover $500 or nothing, whereas the judgment on verdict was for $200. The petition of plaintiffs and instructions of the court, though somewhat indefinite, seem to be on the theory of an express contract to pay $500-not on the basis of quantum meruit. The verdict for a smaller amount than warranted by the instructions of the court is not error available to the defendant. Only the plaintiffs should be heard to complain thereof. On request of plain-. tiffs, the court would, no doubt, have va- STEPHENSON, C. The plaintiff for cause cated the verdict; but plaintiffs saw fit to of action alleges that the defendant sold and accept the reduced amount rather than un-delivered to him a certain truck, representing dergo another trial. Dunning v. Studt, 51 Okl. 388, 151 Pac. 1066. Robinett & Ford, of Tulsa, for defendant in error. the same to be of a certain condition and quality, which representation proved to be While said listing does not provide for a false and untrue. The petition of the plaincommission of $500, defendant testified that tiff, in substance, stated a cause of action he priced the property at $10,000 net from for breach of warranty, and further alleged which and from the other circumstances, it the return of the truck to the defendant. As may be inferred that $500 was added to the a part of the purchase price the plaintiff delisting price as the amount of compensation. livered a certain automobile to the defendUnder the statutes, this court is required to ant, which the latter refused to return to the disregard any error in the pleadings or pro- plaintiff at the time of the return of the ceedings which does not affect the substan-truck. It appears that the defendant had For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |