1. APPEAL AND ERROR — Review — Agreed Statement of Facts. In a case triable in this court on review on an agreed statement of facts, this court, not being concerned with the credibility of witnesses or the weight of their testimony, will apply the law to the facts as a court of first instance.
2. SUBMISSION OF CONTROVERSY — Agreed Statement of Facts — Determination and Relief. Unless upon the agreed statement of facts and the inferences which the law draws from them a case is made out for the plaintiff, he having the burden of proof, judgment should be rendered for defendant.
3. PRINCIPAL AND AGENT — Negligence of Agent — Loaning Money. In an action by a money lender against his agent to recover the amount of a loan alleged to have been lost through the negligence of the agent in passing upon the title of the borrower to the proposed security, the agreed statement of facts recites the contract of agency to be that the agent shall use such care in making the loan as he used in transacting his own business of like character; that in loaning his own money he was in the habit of passing upon the sufficiency of the title to the proposed security; that in loaning the money sought to be recovered he passed upon the title to the proposed security, and in so doing exercised the same degree of care, skill, and diligence that he was accustomed to exercise in transacting his own business of like character; and that it was his honest judgment that the abstract showed good title in the borrower. Held that, in the absence of proof tending to show that the agent was not possessed of reasonable skill or capacity in determining the validity of titles, no recovery can be had against him.
(Syllabus by the Court.)
TURNER, J. (after stating the facts as above).
In considering this case, let us first inquire as to what is our duty as an appellate court concerning it. We take it that the case is practically triable by us de novo; that, being before us on an agreed statement of facts, this court is not concerned with the credibility of witnesses or the weight of their testimony, but, the facts being determined, "we are as competent to apply the law to the facts found as was the trial court." Consolidated Steel Wire Co. v. Burnham Han. Mun. Co., 8 Okla. 514, 58 P. 654. That being true, we will lose sight of the judgment of the lower court, and determine the questions involved as though we were a court of first instance.
This is a suit to recover a loan alleged to have been carelessly and negligently paid out and lost by defendant while acting as agent for plaintiff under the circumstances set forth in the agreed statement of facts. Now, it is well settled that, where a case is presented on an agreed statement of fact, the only question that can be considered is whether they require a judgment for plaintiff as a matter of law. No inference of fact can be drawn. Collins v. Waltham, 151 Mass. 196, 24 N.E. 327; Railroad Co. v. Wilder, 137 Mass. 536; Mayhew v. Durfee, 138 Mass. 584; Brown v. Evans, 15 Kan. 88.
In Gray v. Crockett, 30 Kan. 148, 1 P. 57, the court says: "Any findings of the court contrary to the facts stipulated or to the issues submitted to the court cannot be considered" — citing Brown v. Evans, 15 Kan. 88; Carpenter v. Small, 35 Cal. 346;
Sidner v. Essex, 22 Ind. 201; Johnson v. Wright, 19 Ga. 509; Bingham v. Board Co., 8 Minn. 441 (Gil. 390).
In the Old Colony R. R. Co. v. Wilder, 137 Mass. 538, the court says:
"Unless, upon such facts, with the inevitable inferences, or, in other words, such inference as the laws drawn from them, a case is made out, the court would consider that the plaintiff has not sustained the burden of proof, and therefore is not entitled to judgment. But neither the Supreme Court in the first instance nor this court upon appeal has the right to found its judgment upon any disputable inference of fact. This view of the nature of a case stated is sustained by other courts. Byam v. Bullard, 1 Curt. C. C. 100, Fed. Cas. No. 2,262; Diehl v. Ihrie, 3 Whart. (Pa.) 143; Kinsley v. Coyle, 58 Pa. 461."
Plaintiff urges that, under the facts found or admitted, defendant was guilty of negligence, in that he took the money of the plaintiff and placed it at hazard upon his own opinion of law. The finding of fact discloses that about September 25, 1901, plaintiff placed in defendant's hands $2,000 to be loaned for him on first real estate mortgages, and the finding is:
"(3) That the defendant has been and was at said time engaged in the business of making loans in Custer county, and was known by the plaintiff to be in that business; that defendant, learning that the plaintiff had money which he desired to loan, proposed and offered to lend money for the plaintiff in Custer county, and assured plaintiff that he would use such care in making said loans as he used in transacting his own business of like character."
Now, in order for plaintiff to recover, it must be found as a fact that defendant did not use ordinary care in making the loan in question. It appears:
"(19) That in making loans in said county in his own business the said defendant always required an abstract to be furnished by the borrowers exhibiting their title in and to the lands proposed as real estate security, and upon inspection and examination of said abstract for the purpose of determining and satisfying himself as to the title of the proposed borrower in and to the land proposed as security, the defendant passed upon the sufficiency of the title in and to the lands. That, upon the presentation of the abstract by the said W. S. Wishard, the said defendant examined the same for the purpose of passing upon the same, and satisfying himself as to the sufficiency and legality of the title of the said Wishard in and to the land proposed to be given as security for the payment of the said loan, and exercised the same degree of care, skill, and diligence in passing upon said title that he was accustomed to exercise in his own business of a like and similar nature, and it was his honest judgment that said abstract of title showed good title in the said W. S. Wishard in and to the said farm herein before mentioned."
There is nothing in the admitted facts to show that by such a course of business said defendant was not exercising ordinary care, skill, or diligence. Before the plaintiff could recover, it was necessary for him to show that the defendant did not exercise ordinary prudence and care such as is ordinarily exercised by persons in similar business affairs. There is no proof in the record, pro or con, on that proposition. It was not incumbent upon the defendant to show that he exercised such care, the burden being upon the plaintiff, and, the plaintiff having failed to sustain the same, there is no liability shown against the defendant.
The judgment of the lower court is reversed, and the cause dismissed.
All the Justices concur.