Arnett v. Wright

• Decision Date: 15 February 1907
• Citation: 89 P. 1116,18 Okla. 337,1907 OK 44
• Parties: ARNETT v. WRIGHT et al.
• Court: Oklahoma Supreme Court

89 P. 1116

18 Okla. 337, 1907 OK 44

ARNETT v. WRIGHT et al.

Supreme Court of Oklahoma

February 15, 1907

Syllabus by the Court.

Where an action is brought on a promissory note, and to foreclose a mortgage given to secure the same, the consideration for which note is illegal in part, no recovery can be had.

[Ed Note.-For cases in point, see Cent. Dig. vol. 11, Contracts §§ 701-712.]

The sale and transfer of a city license to sell intoxicating liquor is prohibited by the law of this territory, and where such sale of a license entered into and makes a part of the consideration for a promissory note, such note is wholly void.

[Ed Note.-For cases in point, see Cent. Dig. vol. 29 Intoxicating Liquors,§§ 108, 109.]

Error from District Court, Logan County; before Justice John H. Burford.

Action by Mary Arnett against Charles L. Wright and others. Judgment for defendants, and plaintiff brings error. Affirmed.

On May 26, 1903, the defendants in error, Charles L. Wright and Ella Wright, his wife, executed and delivered to plaintiff in error, Mary Arnett, their promissory note for the sum of $718, and to secure the payment of the same also executed and delivered along with said note their mortgage upon certain premises situated in the city of Guthrie, Okl. T. The record discloses that the note and mortgage were given as the purchase price of a saloon stock then owned by Herman Arnett, the husband of the plaintiff. An invoice of the saloon was made, and included the unexpired term of a city license, valued in the invoice at $44.73, which entered into and made a part of the consideration for the said note and mortgage. This action was commenced on the 16th of September, 1904, to obtain judgment upon said note and to foreclose the said mortgage. Defendants answered in due time, alleging that a part of the consideration of said note and mortgage was the transfer by said Herman Arnett to the defendants of certain whisky bonds of the value of $109.65, which transfer was never made as agreed to be, and that another part of the consideration was the transfer, by said Herman Arnett to defendant Charles L. Wright, of the unexpired term of a certain saloon license issued by the city of Guthrie to said Herman Arnett, which said license was invoiced at the price of $44.73, and at such valuation entered into and made a part of the consideration of said note and mortgage, and that such transfer of said city license was illegal and void, because contrary to the provision of the ordinances of said city, and contrary to the statutes of the territory of Oklahoma. No reply was made to this answer, but on the 3d day of October, 1904, plaintiff filed a motion in said cause for the appointment of a receiver to take charge of the mortgaged premises. This motion was resisted by defendants Wright, and a hearing had and testimony taken before the court on February 27, 1905, upon which hearing the court refused to appoint a receiver, because a part of the consideration for said note and mortgage was illegal. Whereupon it was stipulated and agreed between the parties as follows: "The parties thereupon agreed in open court to waive a jury and submit said cause to the court upon the merits, and that the evidence submitted upon the application for the appointment of a receiver in the above entitled cause should be considered by the court the evidence upon the trial on the merits of said cause." Thereupon the court took the said cause under advisement, and on the following day, to wit, February 28, 1905, rendered and entered judgment in said cause in the words following: "And the court having considered said evidence, and having heard the arguments of counsel for the plaintiff and for the defendants, and being fully advised in the premises, finds that the note and mortgage sued upon by the plaintiff and set forth in plaintiff's petition are null and void, and not enforceable, because a part of the consideration of the same was illegal, and judgment is therefore rendered for the defendants. To all of which plaintiff excepts." From this judgment the cause comes to this court by case-made.

C. R. Buckner and Geo. W. Buckner, for plaintiff in error.

Lawrence & Huston and John Adams, for defendant in error.

GILLETTE J.

From the foregoing statement it is manifest that but a single question is presented to this court for its determination. There can be no question but that an item of $44.73 representing the invoiced value of the unexpired term of a city license to sell intoxicating liquor, issued by the city of Guthrie, to Herman Arnett, entered into and made a part of the consideration of the note sued on in this action, and the question now to be answered is, does this item vitiate and render void the note and mortgage as held by the trial court? We are of the opinion that it does. Section 387, Wilson's Rev. & Ann. St. 1903, provides, inter alia, "that no license shall in any case be assigned or transferred." No...