(225 P.)

S. Avery and others. From orders in favor the defendants also moved for judgment of plaintiffs, and in each case, defendants appeal. Cases consolidated, and orders reversed in part and affirmed in part. West & Petry, of Tulsa, for plaintiffs in

The petition in the replevin action, as originally drawn and filed, sought only the possession of the property, or the sum of $12,500, the value thereof, in case possession could not be acquired. No mention was made of damages for the detention of said property, or for depreciation or deterioration thereof. To this petition the defendant filed answer pleading facts constituting a complete defense to plaintiff's cause of action, but failed to appear at the trial.

and in doing this it is essential that we look, amendments must be in furtherance of justo the proceedings leading up to the applica- tice, and can only be allowed if they do not tion for said order, as well as the petition change substantially the claim or defense. therefor. If such amendments are not in furtherance of justice, or if they change substantially the claim or defense, their allowance constitutes reversible error. Leavenworth, Lawrence & Galveston R. Co. v. Van Riper, 19 Kan. 317. See, also, Haight v. Schuck, 6 Kan. 192; Alvey v. Wilson, 9 Kan. 401; St. Louis & S. F. Ry. Co. v. McReynolds, 24 Kan. 368; Kansas City L. & S. W. Ry. Co. v. Richolson, 31 Kan. 28, 1 Pac. 138. The amendment allowed in this case changed substantially the claim of plaintiff. It permitted a recovery of damages in the sum of $11,000 for which no claim was made in the original petition and of which claim the defendant had no notice. It can hardly be said that a material amendment of a pleading, made in the absence of an adverse party and without notice to him, would be in furtherance of justice. It would not tend to promote justice for a party to claim merely the return of specific personal property, or its value if return cannot be had, and to be allowed, after he finds that the other party is absent, and without notice to such other party, to set forth by 'amendment a cause of action for damages for which no mention was made in the pleading to which such other party had answered. It would be manifestly unfair and unjust for a party who has notified the adverse party by his pleading that he merely

It is alleged in the petition for the nunc pro tunc order that after the plaintiff had announced ready for trial, it asked leave of the court to amend its petition so as to cover and include damages for depreciation and deterioration of the property involved during the pendency of the action, and that the court permitted the amendment to be made, and thereupon the plaintiff introduced its testimony, and at the conclusion thereof the court rendered judgment for the plaintiff for the return of the property, or if a return could not be had, for the sum of $12,500, the value thereof, and for the sum of $11,000 damages for the unlawful and wrongful detention of said property during the pendency of the action. That although permission was granted to amend the petition so as to ask for damages for detention and depreciation of the property, the plaintiff through | claimed a return of the property, or its valoversight failed and neglected to amend said petition upon its face, and the journal entry of judgment failed to show upon its face that said amendment was permitted, and that the record is silent as to the fact that said amendment was allowed.

ue, afterwards in the absence of the other party, and without notice to him, to so amend his pleading as to claim damages in the sum of $11,000, and take judgment for that amount.

In the case at bar, the defendants may not have had a valid defense to the plaintiff's cause of action for the possession of the property, but they might, and probably did, have a valid defense to the claim for damages, and they should have been given an oppor tunity of litigating that question.

The court in its nunc pro tunc order finds that notice of such amendment was given to the defendants, but the evidence fails to support this finding. In fact, it is not claimed that notice was given that the petition would be amended, but the attorney for the plaintiff claims to have told one of the attor neys for the defendant that he was going to prove damages, and would want the pleadings to conform to the proof. This was not notice of the proposed amendment.

Taking these allegations as true, do they show facts authorizing the court to make or permit the amendment? The amendment was sought after an answer had been filed, but in the absence of the defendant, and without any notice to it, and after the plaintiff had announced ready for trial on the original petition; therefore the only statutory authority for an amendment under these circumstances is found in section 318, Comp. Stat. 1921, which provides that the court may, before or after judgment, in furtherance of justice, and on such terms as may be proper, amend any pleading by adding or striking out the name of a party, or correcting a mistake in the name of a party, or a mistake in any other respect, or by inserting other allegations material to the In Davenport v. Jamison (Okl. Sup.) 177 case, or conform the pleading to the facts Pac. 550, it was held that the court was withproved, when such amendment does not out jurisdiction to render judgment for a change substantially the claim or defense. greater sum than that asked for in the orig[1, 2] While the allowance or disallowance inal petition in the absence of notice to the of amendments under this provision rests defendant of an amendment by which adlargely within the discretion of the trial ditional damages were asked, and that the court, that discretion must be exercised with-excess of the judgment over the amount origin the bounds of statutory authority. Such inally asked was null and void.

(225 P.)

It is conceded that the damages allowed, mission, the plaintiff could not dismiss withwere for the detention, depreciation, and de- out the consent of all parties interested. terioration of the property subsequent to Sizemore v. Dill (Okl. Sup.) 220 Pac. 352. the institution of the action, and, this being true, the plaintiff should have proceeded under section 323, Comp. Stat. 1921, which provides that

"Either party may be allowed, on notice, and on such terms, as to costs, as the court may prescribe, to file a supplemental petition, answer or reply, alleging facts material to the case, occurring after the former petition, answer or reply."

[3] We conclude that the trial court erred in permitting the amendment, and in making the nunc pro tunc order correcting the

record to show the same.

This brings us to a consideration of the issues raised by the motion to set aside the order of dismissal in cause No. 19345.

The defendants contend that this is not an appealable order, and that the appeal should

be dismissed.

A motion for judgment on the pleadings is of the nature of a demurrer, and is governed by the rules applicable to a general demurrer. Such motions are not looked upon with favor, and amendments may be made to defeat them. Mires v. Hogan, 79 Okl. 233, 192 Pac. 811. This being true, it necessarily follows that the filing of a motion for judgment on the pleadings, and the submission of a cause thereon, is not a final submission thereof, so as to prevent an order of dismissal on the motion of the plaintiff. See Naylor v. Eastman National Bank (No. 12981) 227 Pac. -, not yet officially reported.

We are of the opinion that the judgment in cause No. 14375 in this court (No. 9474 in the trial court) should be reversed and the cause remanded, with directions to set aside the order nunc pro tunc correcting the pe tition and journal entry, and that the order of the court in cause No. 14598 in this court (No. 19345 in the trial court) denying the motion to set aside the order of dismissal should be affirmed, and it is so ordered.

JOHNSON, C. J., and McNEILL, HARRI

cur.

[4] An appeal may be taken from a judgment or a final order. Section 780, Comp. Stat. 1921. And a "final order" is an order affecting a substantial right in an action when such order, in effect, determines the action and prevents a judgment. Section 781, Comp. Stat. 1921. The order of dismis- SON, COCHRAN, and WARREN, JJ., consal determined the action, and was a final order. It disposed of the case as effectually as would a judgment. An order of the court overruling a motion to vacate a judgment is a final order to review which a proceeding in error may be prosecuted in this court. Vann et al. v. Union Central Life Ins. Co., 79 Okl. 17, 191 Pac. 175. Likewise, an order overruling a motion to vacate a final order is a final order from which an appeal may be prosecuted. Hence the appeal will not be dismissed.

[5] It appears from the record that after the issues were joined, the plaintiff filed its motion for judgment on the pleadings and that the defendants joined in said motion, but asked that judgment be rendered for them and the cause was submitted to the court on these motions. After such submission and before judgment was rendered, the plaintiff filed its motion to dismiss said cause without prejudice; that motion was heard on the day it was filed by a judge other than the one to whom the cause was submitted, and an order of dismissal entered, without the knowledge or consent of defendants.

MURRY v. MERCHANTS' SOUTHWEST
TRANSFER & STORAGE CO.
(No. 14486.)

(Supreme Court of Oklahoma. Feb. 5, 1924.
Rehearing Denied April 15, 1924.)
(Syllabus by the Court.)

1. Corporations 433 (2) Principal and agent 174-Ratification of agent's unauthorized acts for jury where evidence conflicting; ratification of agent's unauthorized acts for court where evidence undisputed or unequivocal.

Where there is sufficient evidence to go to the jury on the question of ratification of an officer's or agent's unauthorized acts or contract, but it is disputed or is such that different inferences may be reasonably drawn therefrom, the question is one of fact for the jury to determine under proper instructions from the court, and it is error to withdraw the question dict. But where the facts are established or from them by instruction or direction of ver undisputed, and are unequivocal in character, whether they amount to ratification is a question of law for the court.

By the provision of section 664, Comp. Stat. 1921, an action may be dismissed by the plaintiff without prejudice, before the final submission of the case to the jury, or to the 2. Trial 251(1)-Scope of Instructions determined by the issues; instruction tendering court where the trial is by the court, and it issues not supported by pleadings improper. was under this section of the statute that the In determining the scope of its instructions, plaintiff and court proceeded. So the in- the court must keep in mind the issues as made quiry is whether or not the action was final- by the pleadings in the cause; and the general ly submitted. If this constitutes a final sub-rule is that all instructions must be confined

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

to those issues and the evidence in support, new trial was duly filed and overruled. The thereof and that no instruction should be given plaintiff appeals. which tenders an issue that is not supported by the pleadings or which deviates therefrom in any material respect.

Any disturbance of the tenant's possession by the landlord whereby the premises are rendered unfit or unsuitable for occupancy, in whole or in part, for the purposes for which they were leased, amounts to a "constructive eviction," if the tenant so elect and surrender his possession.

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Constructive Eviction.]

Commissioners' Opinion, Division No. 5. Appeal from District Court, Oklahoma County; James I. Phelps, Judge.

For reversal of the judgment plaintiff assigns the following specifications of error: First, the court erred in giving instruction No. 4, to the giving of which instruction the plaintiff at the time duly excepted; second, the court erred in giving instruction No. 5, to the giving of which instruction the plaintiff at the time duly excepted; third, the verdict of the jury is wholly unsupported by any evidence, and is contrary to law; fourth, the court erred in overruling the motion of plaintiff for a new trial.

The questions involved under these assignments of error are discussed by plaintiff in error in his brief under the following propositions; First, the lease contract sued on was properly executed and is binding on the defendant; second, if the lease contract was defectively executed or executed by S. A. Action by Thos. F. Murry against the Mer-Rourke without authority the defendant has chants' Southwest Transfer & Storage Com- ratified such as of its president, and, havpany. From a judgment for defendant, ing acknowledged the validity of the conplaintiff appeals. Reversed and remanded

tract by paying the monthly rental for a period of 21 months, is now estopped to question the validity of the contract; third, there was no eviction, and condition of the premises was not such as to justify the refusal to pay rent, for the reason the defendant without complaint had paid the rent for a period of 21 months, and had never complained of the condition of the building or the roof, or notified the plaintiff of any alleged defective condition or of the necessity of repairs.

The lease in question was signed by the president of the defendant corporation, but is not attested by the secretary, nor is the seal of the corporation affixed thereto.

The defendant company in its answer specifically denied the execution of the lease.

It is contended by counsel for plaintiff in their brief: First, that there was no competent evidence to show that the lease contract was executed without authority, and no evidence that it had not been ratified, and that the facts presented a question of law for the court, and it was error to leave it to the jury; second, that if there was any evidence tending to show either lack of authority or no ratification the court should have

PINKHAM, C. This action was instituted in the district court of Oklahoma county by the plaintiff in error as plaintiff against the defendant in error as defendant, to recover amount of two installments of rent under a lease contract with the defendant. The parties will be referred to as plaintiff and defendant, as they appeared in the trial court. This lease contract by its terms leased to the defendant a two-story cement building in Oklahoma City for a term of three years and two days, or from May 1, 1920, until May 3, 1923, for a rental for the entire period of $8,100, payable at the rate of $225 per month, in advance. It was further provided in the lease that the plaintiff should keep the roof of the building in good condition, but should make no further repairs. This lease was signed by the plaintiff and by the Merchants' Southwest Transfer & Storage Company, by S. A. Rourke, presi-instructed the jury that the burden of proof dent, and acknowledged, but was not attested by the secretary nor the seal of the corporation attached, A copy of the lease was at tached to plaintiff's petition, which petition is in the ordinary form, and as stated seeks to recover for the installment of rent due for the months of February and March, 1922. For answer defendant filed a general de nial and a specific denial of the execution of the lease.

The case was tried to a jury, and resulted in a verdict for the defendant, upon which the court rendered judgment. Motion for

on this question was on the defendant, and that the court erred in giving instruction No. 4.

In the instruction complained of the court told the jury in effect that, if there was an unpaid balance due the plaintiff from the defendant for the months of February and March, 1922, the verdict should be for the plaintiff; and, if S. A. Rourke entered into the lease in question without authority from the defendant corporation, either express or implied, and without its knowledge, then defendant would not be liable for the rent for

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(225 P.)

inferences may be reasonably drawn therefrom, the question is one of fact for the jury to determine under proper instructions from the court, and it is error to withdraw the question dict. But where the facts are established or from them by instruction or direction of verundisputed and are unequivocal in character, whether they amount to ratification is a question of law for the court." 14A C. J. 412.

any time the property was not occupied by the defendant, and that if the defendant company never occupied the premises then the verdict should be for the defendant; that if the defendant company, by its duly authorized officers, entered into this lease, then the verdict should be for the plaintiff, if there is an unpaid balance due on the lease; that, although Mr. Rourke may not have had authority to have entered into the In view of this state of the record we contract in question, but, if the defendant think the instruction complained of fairly company took charge of the property and submitted the issue of whether the said S. paid the portion of the rental thereon as A. Rourke had authority to enter into the shown by the evidence, amounting to about lease in question, and, if he did not have $4,700, then the company would be estopped such authority in the first instance, whether from denying the liability or authority of under all the facts and circumstances surMr. Rourke from entering into the lease, and rounding the case the defendant company the verdict should be for the plaintiff in | whatever amount found to be due; that, if the company knew of this arrangement, although the lease may not have been entered into in strict legal form, and accepted the benefits and paid rent to the amount of $4,700, then the law would presume that they had ratified whatever contract or arrangement Mr. Rourke had made, although he may not have been expressly authorized to enter into the lease in the first instance.

There is evidence in the record that the defendant paid 21 monthly installments on this contract without protest or complaint of any kind; that the payments were made by check signed "Merchants' Southwest Transfer & Storage Co., by S. A. Rourke, President," and that these checks were all paid. There was no objection made to this testimony on the part of defendant or its coun

sel.

There is also testimony in the record to the effect that the board of directors of the defendant corporation never made the said S. A. Rourke who signed the lease contract its manager; that it never authorized him to lease property for it, but that he did lease property in his individual capacity; that the defendant company never knew anything about the lease in question until the commencement of this action. One of the witnesses, a director of the defendant company, testified that

"The defendant company had never occupied this building or ever taken any interest. The board of directors didn't know that this purported lease was in existence until this suit was brought."

[1] An examination of the record discloses sufficient evidence to justify the giving of the instruction criticized. In other words, whether or not the defendant ratified the act of its president in entering into the lease contract involved was a question of fact properly submitted to the jury.

"Where there is sufficient evidence to go to the jury on the question of ratification of an officer's or agent's unauthorized acts or contract, but it is disputed or is such that different

ratified his acts.

Counsel for defendant in error says in his brief that estoppel or ratification must be affirmatively pleaded. It is, however, clear from an examination of the evidence on this branch of the case that it was in fact tried on the question of ratification and estoppel, and that the court instructed the jury on that question without objection on the part of the defendant.

"While, as a general rule, estoppel or waiver must be pleaded, failure to do so may be waived by plaintiff by proceeding with the trial without objection as though the defense relied on had been pleaded." First State Bank of Texola v. Terrell, 44 Okl. 719, 145 Pac. 1140, Ann. Cas. 1917A, 681..

It is next contended that the court erred

in giving instruction No. 5. That instruction is as follows:

"If you find and believe, gentlemen, from the evidence, that under the terms of the contract to keep the roof in good condition, and that he Mr. Murry, plaintiff in this case, was obligated failed in that respect, and his failure to keep the roof in proper condition resulted in the property being useless to the defendant, then the plaintiff would not be entitled to recover in this action."

The lease in question provided that

"The first party agrees to keep the roof in good condition, but to make no further improvements or repairs."

[3] The instruction complained of was given, it appears, upon the theory of a constructive eviction. The general rule relating to a constructive eviction is that any disturbance of the tenant's possession by the landlord whereby the premises are rendered unfit or unsuitable for occupancy, in whole or in part, for the purposes for which they were leased, amounts to a constructive eviction, if the tenant so elects and surrenders his possession. 16 R. C. L. 686. The rent is suspended by an eviction because it is plainly unjust that the landlord should be permitted to collect it while by his own act he deprives the tenant of the possession which is the consideration for it. Holden v. Tidwell, 37