
    SMITH v. GRAHAM.
    No. 14466
    Opinion Filed April 20, 1926.
    Rehearing Denied Feb. 15, 1927.
    1. .Appeal and Emnv-iReversal — Verdict .Unsupported by Evidence.
    A judgment of the court based upon the verdict ,of a jury,- in a law action,- will be re.verg.ed on appeal .if there is, not any competent testimony to support the verdict. , ,
    ' 2. Same.
    Hecord examainédheld, to ,h,e, insuffi-'ciént'to -’support.'judgment for the ’ plaintiff.
    (Syllabus, by Stephenson, C.)
    Commissioners’ Opinion, Division No. 4.;-
    ■ 'Error-from District Court, Okmulgee’cWri•ty; Marla -L. Bozart-h,' Judge. ' 1
    Action by A. ,E. Graham against C. T. .Smith. Judgment for plaintiff, ana, defemjl- . ant brings errpr. .
    .Reversed1.';
    ■ A. L. Emery and Stuart, Sharp ;& Cruce, for plaintiff in terror. • ■ I
    ' "W. ’A. 'Barnétt ánd ÍL."Ü. 'Cowley,' for, defendant in error. ' ' ’ ’’ ; , ‘ '
    
   .Opinion by

STEPHENSON, O.

- O. T..Smith , and -several other parties were joint owners of a, producing, .oil and gas lease. ■ .The several owners-,entered into a trust,,agreement, whereby -O. T. Smith was made trustee for the - sale and management pf the oil and ;.gps- lease., .The .trusts agreement, provided ¡that ,;a. tyvo-thirds ,.interest,,might sell:..the -.entire-lease. ... ■ , - . ,

• 1'0. T.''Smith,‘as'-trustee, entered-into an agreement 'with lA. E.‘- Graham -to 'sell the; oil and gas lease, on'"a'i'commission,'1 to Lestér ,B. Gum and James H.. Topp, for . $100,,006. . A written agreement wasentered into on . the. paid, of ,0. T. .Smith, . as. trustee, with A., E. Graham,, whiph provided .that the latter would .be allowed, a $5,000 commission .for the, .sale of. the, oil; and gas lease to , Lester ,B.. Gum pnd James. H. Topp. . Theije ,'Áyas a,.,sulpsequén.];,.agreement .ijadorsed ,.ip writing on the contract,, to .the effect thq.t ,A. B. Graham should receive 5 per cent, of whatever sums were r'ealizéd from Gum and Topp. Gum and Topp took an option for 60' days to purchase the oil and gas lease, and placed $5,000 in the ’ bank in escrow with the option. Ginn and Topp failed to complete the .sale. It appears that A. E., Graham went to Tulsa,and.entered into a contract with F. ■ E. Perkins, for 'the sale of the, olí and gas lease to the latter for $100,000. Certain statements were made in‘the contract, as to the extent of production from the lease. Perkins claimed that" the lease did not have the production represented in the contract made with him by Graham, and refused to carry out the purchase. A. E. Graham took the position that the agree-meht entered into between him and Perkins was a valid contract, and capable of enforcement by the owners of the lease. Graham claims that he was entitled to the sum of $5,000 as commission, as he made a valid, and enforceable contract with Perkins..

. Note. — See under (1) 4 O. I. p. 956 §2835. (2) 9 O. J.. p: 654., §127. . S'ee 2 R. O. Ii. p,. 202. 1 ¡R. .C. L. Supp. ,p.,442. 4 R, O. I/. Supp. p. 91;. 5 B-. C. D. ..Supp. p., 81. ,

' Graham further contended that the ' title was found to be defective in the course of preparing an abstract of title for Gum and Tópp, and that O. T. Smith, in his individual capacity and ®is trustee, employed him to perfect the title. ■ Graham states that he spent $250 of his own money in perfecting the title, and that his services were reasonably worth the sum of $1,500.

Graham was not paid any of the sums of money that he claimed in.relation to these-transactions. Graham commenced, his action against O. T. Smith for the recovery of $250 as 5 per cent, of the ‘ $5,000 placed in escrow 'by Gum and Topp. He further sued for the sum, of $250. for money ■ expended in preparing the title, and for $1,500 (as a reasonable attorney fee for the services.

A further sum of' $5,000 was sued- for as commission on the Perkins contract. The trial of the cause resulted in judgment for $5,000 against -the defendant "G. T. Smith. The verdict and judgment ran against the defendant in his individual capacity. The defendant appealed the cause here, and assigns numerous errors for reversal. If we should undertake to pass on the numerous assignments of error separately, and answer the contentions of both parties, • the opinion would reach* a 'length that would obscure the material points involved..

’ We have examined all of the evidence in relation to the Perkins contract, and^find that the production was not as great as was represented by the contract. Perkins was not required to carry out the contract by its terms. The owners of the lease would not have been able to enforce the contract in an action, for specific performance: It was error to submit the question of recovery on the Perkins contract to.,the .jury. The court instructed the .jury..not to allow the plaintiff "a: recovery, for .-the $25Q oh the Gum ¡ and ' Topp transaction., The,-plaintiff did not except to the instruction.

On thé conclusion'' reached1,c'iánd1 the instructions ..of the court .in ■ relation .to,, the $250,iteiq only, the money expended by plaintiff in clearing the title [ pud . compensation claimed therefor, remain tó be settled. These two items amount to' $1,750. We1 cannot determine from the record whether the verdict of the jury-was for the $5,000 "claimed on the Perkins contract, or in part for the contriact, and .for the .whole or in part for the expense money and services. ,fo;r per-fecing the .title. "iVhether the.plaintiff might join actions against the defendant ..as .an individual and as trustee ,in the,.same .suit, was not questioned in the trial of..the cause, and ,is ,not involved here on appeal, i . . ...

If the'" plaintiff might join the" actiohs, whether the "court might submit the "questions to the jury without a further" instruction " to find separately, is not ■ necessary for 1 determination In this appeal. Since the conclusions reached leave the judgment standing without sufficient evidence to support the .verdict of the jury,, it must be reversed .on this point. The other- questions may pot arise in the .case, in the course of further ,proceedings, . A. judgment of .the court based upon the verdict .of .a'j.ury, in a law aption,. which .is not,supported by any competent evidence, will be .reversed,,on .appeal. Young v. Eaton, 82 Okla. 166, 198 Pac. 857.

The cause is. reversed, an,d,-remanded for furth.er proceedings.’ in accordance .with .the views herein expressed. ... , ■ . .

By the Court: It is so ¡ordered.  