
    James Carter et al. v. The Prairie Oil and Gas Company.
    No. 16,165.
    Contracts — Agency — Independent Contractor. It appearing-that the plaintiffs were employed by one who was an independent contractor, and not an agent for the defendant, a. demurrer to the plaintiffs’ evidence was properly sustained in' an action to recover for services rendered.
    Error from Montgomery district court; Thomas J. Flannelly, judge.
    Opinion filed October 9, 1909.
    Affirmed. •
    
      A. L. Billings, for the plaintiffs in error.
    
      W. S. Fitzpatrick, J. B. F. Cates, and N. E. Van. Tuyl, for the defendant in error.
   Per Curiam:

The controversy here is whether the. Prairie Oil and Gas Company is liable to James Carter and Homer Green for making certain grades and firewalls on the Copan tank-farm in Indian Territory, and. this depends upon whether J. M. Vansky, who employed them, was acting for the company or for him-. self as an independent contractor. They alleged that, the agreement was that they should receive a certain price per cubic yard for grading and excavating dirt; and rock, with a proviso that if these rates did not. yield reasonable wages a price per yard should be paid which would net them reasonable compensation for the work. The capacity in which Vansky entered into the contract with plaintiffs was put in issue, and in attempting to maintain their contention that they were: working for the company and not for Vansky the plaintiffs produced, in addition to their own testimony, that, of the superintendent and the engineer of the company, as well as the testimony of Vansky, with whom the negotiations were had. At the conclusion of their testimony the court sustained a demurrer to the evidence,, and the only question now is, Was there anything substantial to submit to the jury? Of course, if there was. any evidence which might entitle the plaintiffs to recover the demurrer should have been overruled. It. appears, however, that none of the testimony submitted would have warranted a finding of the jury against the defendant. Vansky, the plaintiffs’ witness,, testified that he was an independent contractor and' had sublet the work to the plaintiffs, and, further, that he did not employ them for the company. The superintendent and the engineer of the company, both called as witnesses for the plaintiffs, testified that Vansky did the work under a contract with the company and' did not act as the agent of the company in the negotiations with the plaintiffs. The contract between the company and Vansky under which the work was dones was put in evidence, and the plaintiffs testified that they knew of its existence and the price that Vansky was receiving from the company for the work they were doing. It is true that there was testimony that Vansky had exhibited what was designated as a salary check, and there were some fragmentary statements which the plaintiffs claim indicated agency, but there is nothing substantial in them nor any testimony substantially inconsistent with that mentioned showing that the plaintiffs were subcontractors under Vansky.

The judgment is affirmed.  