By its petition in error defendant has assigned 18 specifications of error, but in its brief only four propositions are urged as grounds for reversal of the judgment. The first and second propositions involve the same question and will be considered and disposed of together. The first proposition reads:
"The court should have sustained the demurrer to the evidence interposed by the defendant at the close of the plaintiff's case."
The second proposition reads:
"The court should have instructed a verdict for the defendant at the close of all the evidence."
These two propositions raise the question In this court of the sufficiency of the evidence as to the agency of Gahagan and of his authority to employ these men to do the work upon which these labor claims are based, and also the question as to whether John E. Hoefer as administrator is a real party in interest in this action and entitled to recover as such.
The question of agency is always a question of fact to be determined by the jury under proper instructions. Clevenger v. Crosby Mooney, 89 Okla. 55, 213 P. 76; Reed v. Robinson,83 Okla. 68, 200 P. 773; Thorp Oil Specialty Co. v. Home Oil Ref. Co., 79 Okla. 225, 192 P. 584; Holland v. Scheruble Heating, Plumbing Repair Shop, 99 Okla. 141, 226 P. 39.
In this case the evidence was in conflict as to the agency and authority of Gahagan to employ these men at the time they were employed, but there are facts and circumstances in evidence sufficient, if believed by the jury, to establish his agency and authority, and in such circumstances it is the established rule of this court that the verdict of the jury will not be disturbed. Where a jury has determined a contraverted issue of fact and there is evidence hi the record reasonably tending to support the verdict the judgment of the trial court upon such verdict will be sustained. It is unnecessary to cite authorities upon this proposition.
Plaintiff alleged and proved a written assignment to his intestate of 14 of the claims sued on in this action. Section 209, Comp. Stat. 1921, requires that every action must be prosecuted in the name of the real party in interest. Section 210 provides that in the case of an assignment of a thing in action, the action of the assignee shall be without prejudice to any set-off or any other defense allowed by law. That these claims were assignable is well settled in this state, and S.D. Taylor was authorized to maintain the action thereon in his own name. K. C., M. O. Ry. Co. v. Shutt, 24 Okla. 96,104 P. 51; Minnetonka Oil Co. v. Cleveland Vitrified Brick Co.,27 Okla. 180, Ill Pac. 326; Chicago, R.I. P. Ry. Co. v. Bankers National Bank, 32 Okla. 290, 122 P. 499.
S.D. Taylor being the real party at interest, and the cause of action being one which survives, at his death his administrator was authorized to prosecute the action and to recover judgment thereon as a part of the personal estate of S.D. Taylor, deceased. It could not be material to the defendant whether the probate court thereafter would or would not allow claims against his estate for these various sums. That is a matter entirely within the jurisdiction and for the decision of the probate court in the administration of his estate and is of no concern to the defendant. It is, therefore, concluded that the trial court committed no reversible error in overruling the demurrer to plaintiff's evidence and in refusing to direct a verdict for the defendant.
The third proposition relied on for reversal reads:
"The judgment for attorney's fees was erroneous and should not have been entered."
It appears from the record in this case that no testimony was introduced and none offered to establish the reasonable value of the attorney's services in the case. Section 7482, Comp. Stat. 1921, provides:
"In an action brought to enforce any lien the party for whom judgment is rendered shall be entitled to recover a reasonable attorney's fee, to be fixed by the court, which shall be taxed as costs in the action."
In the case, of Holland Banking Co. v. Dicks, 67 Okla. 228,170 P. 253, this court in considering the above statute said:
"Where an action is brought upon a promissory *Page 235 note for the foreclosure of a lien upon collateral given to secure the payment of said note, an attorney's fee, under section 3877, Rev. Laws 1910, may be awarded the successful party in the action and taxed as costs, but the trial court is without authority to award such attorney's fee without evidence as to the value of such attorney's fee."
This case has been followed in the case of Holmes v. S. H. Kress Co. et al., 100 Okla. 131, 2231 P. 615. In the absence of proof showing the value of the services rendered by the attorney the court is without authority to render a judgment in a lien action for attorney's fees. It is, therefore, concluded as to the third proposition that the trial court erred in rendering judgment In favor of the plaintiff in this action for the sum of $150 as attorney's fees.
Defendant's fourth proposition complains of the giving of instruction No. 3 by the court as follows:
"If you find from the evidence in the case that Gahagan was authorized to employ the several parties to perform the work on the Oklahoma Pipe Line and that the said work was performed by said parties, then and in that event the plaintiff, John E. Hoefer, administrator, is entitled to recover in this case."
It appears that no request was made by the defendant for a more extended or definite instruction upon the issues covered by instruction No. 3. An examination of said instruction does not disclose any erroneous statement of the law as applied to the facts in this case, and if defendant desired the instruction to be fuller and more definite in any particular, the defects complained of should have been pointed out to the court by a requested instruction covering such matters. Where an instruction correctly states the law as applied to the facts in a case, complaint of such instruction that it is not full and complete cannot avail in this court unless the trial court was given an opportunity to meet the objection upon the trial. Moore v. O'Dell, 27 Okla. 194, 111 P. 308; First Nat. Bank of Muskogee v. Tevis et al., 29 Okla. 74, 119 P. 218; Chicago, R.I. P. Ry. Co. v. Baroni, 32 Okla. 540, 122 P. 926; St. Louis S. F. Ry. Co v. Crowell, 33 Okla. 773 127 P. 1063. Instructions must be considered as a whole. The instruction complained of, when read in connection with the other paragraphs of the court's charge, shows that all issues were fairly presented and the law applicable to the facts correctly stated.
This case appears to have been fairly tried and the verdict of the jury is amply sustained by the evidence. It is not deemed proper to reverse this case for a new trial alone upon the erroneous judgment of the trial court as to attorney's fees. It is, therefore, concluded that if plaintiff shall file a remittitur in this court prior to the going down of the mandate herein for the sum of $150, the amount of the attorney's fees included in the judgment, the judgment of the trial court should be in all things affirmed, otherwise the judgment of the trial court to be reversed and cause remanded for a new trial.
By the Court: It is so ordered.