KAWFIELD OIL CO. v. WARNER

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KAWFIELD OIL CO. v. WARNER
1926 OK 592
247 P. 969
118 Okla. 271
Case Number: 16833
Decided: 06/29/1926
Supreme Court of Oklahoma

KAWFIELD OIL CO.
v.
WARNER.

Syllabus

¶0 Appeal and Error--Insufficiency of Evidence in Law Action-Reversal. Where there is no competent evidence reasonably tending to support the verdict and judgment in a law action, the judgment will be reversed.

Higgins & Berton and Christy Russell, for plaintiff in error.
C. H. Rosenstein and D. F. Gore, for defendant in error.

ESTES, C.

¶1 Parties will be referred to as they appeared in the trial court, inverse to their order here. Warner had judgment against Kawfield Oil Company, a corporation, for $ 1,800 and interest, and $ 175 attorney fee, for work and labor for 50 days in performing a "fishing job" (removing, tools, machinery, or drilling devices, lodged in an oil well), establishing also a lien upon the leasehold, rig, and equipment. Defendant's first assignment of error is that the evidence is insufficient to sustain the verdict and judgment. The question arises on plaintiff's contention that he was to receive $ 35 per day and expenses, while defendant contends that plaintiff was to receive only $ 15 per day. Does the evidence reasonably tend to support the verdict and judgment on this sue? Defendant oil company had employed a Mr. Braymer to do the fishing job. Plaintiff Warner had been in the employ of Braymer doing, the work on this job at a wage of $ 15 per day, which had been paid by defendant company and charged to Braymer, Braymer, not having paid plaintiff promptly, and not succeeding in the fishing job, met in the office of the company with its general manager, Mr. Harvey, together with plaintiff, Warner, in the latter part of May, 1923. At this time it was agreed between Braymer and the company that the Jormer should be released from his contract, and it was understood that plaintiff Warner should continue the fishing job, which he did for 50 days from June 1st, the only dispute being the amount of daily wage. Plaintiff and one other witness testified that plaintiff said he would not go back on the job for less than $ 35 per day and expenses, the question being whether Harvey heard this and assented thereto. Plaintiff testified that thereafter Mr. Harvey said, "Go back on the job and he would see that I was paid"; that Braymer and Harvey were both present in the room at the time. Plaintiff further testified:

"Q. And you never did tell Mr. Harvey direct that you would not go out there for less than $ 35 per day and expenses, did you? A. No, sir, I never did tell him direct. Q. So that conversation was the conversation you had with Mr. Braymer? A. Yes, sir. Q. So when you were paid, there wasn't anything said about the $ 35 per day? A. Not at. that time. Q. You do not know whether he heard this conversation between you and Mr. Braymer or not. do you? A. Well, I could not swear to that."

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