
    ALLES & BOON et al. v. GRUBBS.
    No. 19949.
    Opinion Filed May 5, 1931.
    
      Tli os. A. Higgins, for plaintiffs in error.
    AVnPer Mathews, for defendant in error.
   LESTER. C. J.

The parlies on appeal appear in the reverse order to that in the district court, and for convenience will be herein referred to as they appeared there.

The plaintiff brought an action in the district court of Payne county, Okla., seeking recovery of damages in the sum of $435 by reason of the breach of a warranty of title to a certain automobile.

The defendants filed a demurrer to plaintiff’s petition, which was by the court overruled. An examination of the petition shows there was no error in the court overruling the demurrer of the defendants. .Thereafter the defendants filed a general denial and alleged other facts.

The assignments of error are substantially as follows:

(1) Tile court erred iu overruling the demurrer of the defendants to the petition, to which the defendants excepted.

(2) The court erred in overruling the demurrer of the defendants to testimony of mu piamtiir at the close of the plaintiff’s case, to which the defendants excepted.

(3) The court erred in giving instructions Nos. 2, 3, 4, 5, and 6, to which the defendants and each of them reserved exceptions.

(4) The court erred in overruling t.lie defendants’ motion for new trial, to which (he defendants excepted.

As shown by the record, the primary facts are as follows:

It appears that the defendants were in partnership engaged in the sale of new and second-hand automobiles in the town of Cushing, Okla.; that they employed one E. T. Trout as the agent and salesman, and he was so engaged long prior to and during the transaction herein involved; he was employed to .sell automobiles for the said partnership on the date mentioned, and as such salesman he sold to the plaintiff a certain Maxwell two-passenger automobile; that the defendants warranted title to the same; that thereafter, on or about the 12th day of February. 1020. said automobile was taken from the plaintiff by virtue of si certain chattel mortgage which was in full force and effect at the time the plaintiff purchased said car from the defendants; that the said defendants failed to protect title to the said automobile and that the plaintiff by virtue of said chattel mortgage lost the value and use of said car he had so purchased from the defendants; that said car at the time it was taken from the plaintiff was of the reasonable market value of $435.

The defendants in their answer state and allege that the said saleman was acting on his own behalf, and that the defendants did not bargain or sell said car and that they were in no manner liable for the value of said car.

One of the grounds set forth in the demurrer of the defendants was that of the statute of limitations. The overruling of the demurrer is assigned as one of the grounds for error committed by the trial court. This contention cannot be sustained, for the reason that the petition must clearly show that the action is barred by the statute of limitations, and one seeking the benefit of the statute of limitations must specially plead the statute of limitations in order to receive the benefit thereof.

In the ease of Betz v. Wilson, 17 Okla. 383, 87 Pac. 844, this court held:

“Where the pleadings, on their face, do not show that the cause of action is barred by the statute of limitations, the statute is not available as a defense to the action unless it is specially pleaded.”

Upon trial of the case, proof was conflicting as to whether or not Trout was the agent and salesman of the defendants. The court submitted instructions consistent with the proof adduced upon the trial on the question of agency. The jury found the issues in favor of the plaintiff.

In the case of Brownell v. Moorehead, 65 Okla. 218, 165 Pac. 408, this court said:

“A continuing agency may be proven by facts and circumstances tending to show the existence of such agency both prior and subsequent to the date of the transaction. Such facts and circumstances may properly include specific instances of conduct when such instances are sufficiently numerous to base thereon an inference of systematic conduct * * * as to be naturally accountable for by a system only and not a casual recurrence. The range of time preceding and subsequent to the event in question, within which such instances should have occurred in order to be admissible in evidence, is generally a matter in the judicial discretion of the trial court. Such circumstantial evidence is admissible even though there be direct testimony denying the existence of the agency.”

There being a sharp conflict in the evidence. the jury having found in favor of the plaintiff and this being a civil action triable to the jury, where there is any competent evidence reasonably tending to support the verdict of the jury, and no prejudicial error of law shown ip the instructions of the court, the verdict and finding of the jury -will not be disturbed on appeal. Neary, Adm’r, et al. v. Etenburn et al., 87 Okla. 259, 209 Pac. 649.

Upon examination of the record, including the instructions of the court, we think the case was'fairly submitted to the jury, and we do not find any reversible error in the trial of said cause, and the same is, therefore, affirmed.

HEFNER, CULLISON, SWINDALL, MC-NEILL, and KORNEGAY, J.T., concur. CLARK, Y. C. J., and RILEY, J., absent.  