This action was commenced by the defendants in error against the plaintiffs in error to recover damages sustained by the defendants in error for the wrongful taking of personal property *Page 4 of the defendants in error by the plaintiffs in error. The parties will hereinafter be referred to as plaintiffs and defendants, as they appeared in the trial court.
It is first contended by the defendants that the court should have instructed a verdict for the defendants because the defendants tendered to the plaintiffs the sum of $49.50, which represented the net earnings from the property which the defendants had wrongfully taken while the property was under the control of the defendants, and that this sum had been accepted by the plaintiffs. It is their contention that the acceptance of this sum waived the tort of the original taking and ratified the use of the property by the defendants. Numerous authorities are cited by the defendants which deal with actions of trover, but those cases have no application here, because the plaintiffs' action was one for trespass for the wrongful taking of the property and they were entitled to recover for the detriment occasioned thereby. The trespass having been committed, the acts subsequent thereto not in satisfaction or release of the right of action are not a defense. In order for the payment of this sum to constitute a defense to the action, it must have been either sufficient to pay the damages sustained or it must have been accepted by the plaintiffs by way of accord and satisfaction. It is not contended by the defendants that it was paid for either of these purposes and was therefore no defense.
Defendants' second proposition involves the correctness of certain instructions given to the jury as to the character of the original taking and the agency of John Terry. By instruction No. 4, the jury was told that the acts of the defendants in taking the machine from the place where the plaintiffs left it was unlawful and wrongful. By instruction No. 7, the Jury was told that Terry had no authority to deliver the machine to defendants, and if he did so even voluntarily, the plaintiffs would not be bound thereby. By instruction No. 8, the jury was told that in determining whether defendants were liable for actual damages done to the machine while in their possession it was immaterial whether actual force was used in its taking. These instructions correctly state the law applicable to the facts shown in the record. There was no allegation or proof of agency on the part of Terry.
The defendants contend that because the plaintiffs did not deny under oath the authority of Terry to deliver the machine to them his authority must be taken as confessed. There is no allegation of agency in the answer of the defendants and, hence, no denial under oath was required. In order to require a denial under oath, it is not necessary that an express averment of agency be contained in the pleading, if the facts constituting the agency are set forth, but such facts must be of such a nature and character that agency follows as a conclusion of law. No averments of this character appear in the answer. Instruction No. 8 correctly stated the law under the facts as shown in the record.
It is next contended by the defendants that the trial court erred in submitting to the jury the question of exemplary or punitive damages. This court has announced the rule in the following language:
"Exemplary damages are imposed by the law on the theory of punishment to the offender, for the general benefit of society, and as a restraint to the transgressor, and are allowed only in cases where malice, fraud, oppression, or gross negligence enter into the cause of action." Rhyne v. Turley, 37 Okla. 159,131 P. 695.
This court has also held that the question of exemplary damages, where properly pleaded, is a question of fact for the jury, if there is some evidence reasonably tending to support that issue, and that in such circumstances the trial court should submit the question to the jury. Williams v. Baldrey,52 Okla. 126, 152 P. 814. In the instant case, there is evidence reasonably tending to show malice and also oppression. It is impossible to say from a reading of the record in this case that there is no evidence reasonably tending to support this position. Under such circumstances, it was not only proper for the trial court to submit that question to the jury, but it was his duty to do so.
Defendants next complain of the action of the trial court in refusing to give defendants' requested instruction No. 7. This instruction was a mere statement of an abstract proposition of law, and the legal proposition contained therein was embraced in instruction No. 5 of the instructions given by the court. This was sufficient. St. L. S .F. R. Co. v. Clampitt,55 Okla. 686, 154 P. 40; Fulsom-Morris Coal Mining Co. v. Mitchell, 37 Okla. 575, 132 P. 1103; Scott v. Vulcan Iron Works Co., 31 Okla. 334, 122 P. 186.
Defendants next complain that the verdict of the jury was excessive and appears to have been given under the influence of prejudice and passion. The jury returned a verdict for $1,250 actual damages, and the *Page 5 trial court required a remittitur of $250. Defendants, argue that the verdict for $1,250 actual damages was so excessive as to show it to have been returned under prejudice and passion, and this vice inheres in the verdict after remittitur filed. There was sufficient testimony to authorize a verdict of $1,000 for the actual damages to the engine and thresher while under the control of the defendants. The jury evidently through an error in calculation returned a verdict of $1,250 actual damages. Upon hearing on the motion for new trial, the court required the plaintiffs to remit the sum of $250 from the verdict for actual damages to conform to the proof, and, upon this being done, the motion for new trial was overruled and judgment entered. This cured the vice of the verdict as to actual damages. Haskell Nat. Bank v. Stewart, 76 Okla. 58,184 P. 463.
The judgment of the trial court is affirmed.
JOHNSON, C. J., and KENNAMER, NICHOLSON, and HARRISON, JJ., concur. MASON, J., dissents.