Advance Thresher Co. v. Doak

• Decision Date: 07 January 1913
• Parties: ADVANCE THRESHER CO. v. DOAK ET AL.
• Court: Oklahoma Supreme Court

129 P. 736

36 Okla. 532, 1913 OK 2

ADVANCE THRESHER CO. v. DOAK ET AL.

Supreme Court of Oklahoma

January 7, 1913

Syllabus by the Court.

A proper defense, set-off, or counterclaim is not barred by the statute of limitations until the claim of the plaintiff is so barred. Comp. Laws 1909, § 5635.

When a mortgagee, after default in some condition of the mortgage takes possession of the mortgaged chattels, or sells them to another party, authorizing him to take possession of them and he does so, and when this is done without any proper foreclosure of the mortgage, and when the chattels are detained from the mortgagors, the mortgagee is guilty of a conversion.

A plaintiff who recovers the full amount sued for cannot complain because he might have recovered more if he had sued upon a different theory.

Commissioners' Opinion, Division No. 1. Error from District Court, Jackson County; J. T. Johnson, Judge.

Action by the Advance Thresher Company against D. B. Doak and others. Judgment for defendants, and plaintiff brings error. Affirmed.

John Rogers, of Altus, and H. M. Thacker, of Mangum, for plaintiff in error.

E. E Gore and P. K. Morrill, both of Altus, for defendants in error.

AMES C.

The plaintiff sued the defendants upon certain promissory notes for a balance of $1,772.89, alleging that this balance remained due after it had foreclosed a chattel mortgage upon certain threshing machinery which it had sold to the defendants. The answers admitted the purchase of the threshing machinery and the execution of the notes and chattel mortgage, but alleged that, at the time the notes were executed, there was an express agreement between the plaintiff and the defendants that they should not become valid or binding until they had been executed by two other persons, and that these other persons never executed them. For further defense the defendants alleged that they had purchased the threshing machinery for the sum of $2,950; that they paid $600 on the notes; that after the maturity of the notes the plaintiff, without the consent of the defendants took possession of the mortgaged property and sold it to two men who had originally been interested with the defendants in the purchase, and that these men at that time paid the plaintiff $500 in cash, and assumed the remainder of the indebtedness; that this was done without a legal foreclosure and amounted to a conversion; and that at that time the property was worth the balance due. The reply, in addition to a general denial, pleaded the statute of limitations against the alleged set-off or counterclaim because the same had not accrued within three years next before the filing of the answers. The evidence tended to support the allegations of the pleadings, and upon this evidence the court submitted the cause to the jury, which returned a verdict for the defendants.

It is first argued that a promissory note cannot be delivered conditionally, so as to make the subsequent signatures of another person essential to its validity, but as the court expressly so instructed the jury and directed it to return a...