Opinion
No. 22155
September 26, 1933. Rehearing Denied October 31, 1933. Application for Leave to File Second Petition for Rehearing Denied November 14, 1933.
(Syllabus.)
1. Principal and Agent — Action Against Principal Arising out of Contract Executed by Agent — Pleading.
In action against a principal arising out of a contract executed by an agent, the contract may, in the absence of timely objection, be pleaded as the act of the principal without disclosing the agency. Or it may be alleged to have been the contract of the principal executed or entered into through his agent.
2. Pleading — Pleading of Inconsistent Theories in Separate Counts of Same Petition Where Ground of Recovery Uncertain.
When the plaintiff has two or more separate theories of, or reasons for, recovery, each of them may be set forth in a different count. This form of pleading is especially appropriate when there is some uncertainty as to the ground of recovery, and may be employed even though there is some inconsistency in the different counts.
3. Principal and Agent — Existence of Agency as Question of Fact.
When the facts pertaining to the existence or nonexistence of an agency are conflicting, or conflicting inferences may be drawn from the evidence, the question presented is one of fact and should be decided as such.
4. Judgment Sustained.
Evidence reviewed and held to support the findings and judgment of the trial court.
Appeal from District Court, Comanche County; E.L. Richardson, Judge.
Action by Jerry Sparlin against the Southern Surety Company for the recovery of a money judgment on accounting. Judgment for plaintiff, and defendant appeals. Affirmed.
Allen, Underwood Canterbury, for plaintiff in error.
J.F. Thomas, for defendant in error.
The record in this case is practically identical with the record in cause No. 22154, Southern Surety Co. v. Gilkey-Duff Hardware Co., 166 Okla. 84, 26 P.2d 144, this day decided. The conclusions of law and of fact, as well as the judgment rendered, are the same. The same questions are presented in the briefs. The causes have been considered together in this court. The opinion of the court in cause No. 22154 is adopted in this case, and the judgment of the trial court affirmed.
RILEY, C. J., CULLISON, V. C. J., and SWINDALL, ANDREWS, McNEILL, OSBORN, BAYLESS, and WELCH, JJ., concur.