Barnsdall State Bank v. Dykes

• Decision Date: 02 June 1928
• Docket Number: No. 223.,223.
• Citation: Barnsdall State Bank v. Dykes, 26 F.2d 696 (N.D. Okla. 1928)
• Parties: BARNSDALL STATE BANK v. DYKES.
• Court: U.S. District Court — Northern District of Oklahoma

26 F.2d 696 (1928)

BARNSDALL STATE BANK v.DYKES.

No. 223.

District Court, N. D. Oklahoma.

June 2, 1928.

A. M. Widdows, Frank T. McCoy, and John T. Craig, all of Pawhuska, Okl., for complainant.

Robert B. Keenan, of Tulsa, Okl., for defendant.

KENNAMER, District Judge.

The complainant brings this action to enforce specific performance of an alleged oral contract entered into on the 4th day of June, 1926, between the complainant bank and the First National Bank of Barnsdall to sell and discount ten promissory notes, the assets of the First National Bank.The bill avers that A. E. Cox, assistant cashier and in active charge and management of the First-National Bank of Barnsdall, called upon complainant's cashier and agreed to sell and rediscount the ten promissory notes of approximately the value of $10,000; that the complainant was to retain sufficient amount of the same to be due from complainant to the said First National Bank to cover any difference in complainant's favor between said banks on the clearings of the day's business; complainant relying upon the agreement of the First National Bank to indemnify complainant on said day honored and paid checks presented to it and drawn on the First National Bank in the sum of $4,329.12 over and above the aggregate amount of checks drawn upon complainant and cashed during the day by said First National Bank, as disclosed by the clearings for said day between the banks; that complainant is able to rediscount said notes in accordance with the agreement and pay the difference between the aggregate amount thereof and the difference in complainant's favor on said day's clearings; that on the 5th day of June, the day following the agreement, the First National Bank of Barnsdall failed to open for business, and the defendant herein was thereafter appointed receiver, and has refused and neglected to deliver to complainant the notes agreed to be delivered in accordance with the terms of the agreement to rediscount said notes.The First National Bank is insolvent, and, unless the defendant be required by the court to deliver the notes to the complainant in accordance with the terms of the agreement, the complainant will suffer irreparable loss, injury and damage.

The defendant has filed a motion to dismiss upon the grounds the bill of complainant does not state sufficient facts to entitle the complainant to any relief, that there is no equity stated in the bill, and that complainant has a speedy and adequate remedy at law.

I am clearly of the opinion that the motion to dismisscomplainant's bill should be sustained.Paragraph 4 of section 5034, Compiled Oklahoma Statutes 1921, provides: "An agreement for the sale of goods, chattels, or things in action, at a price not less than $50.00, unless the buyer accept or receive part of such goods and chattels, or the evidences or some of them, of such things in action, or pay at the same time some part of the purchase money," is invalid.It appears from the allegations of the bill that the alleged contract for the sale and discount of the notes of the aggregate value of $10,000 was oral.No part of the notes were delivered, nor was any part of the consideration for the sale and discount of the notes paid.This being true, the contract was void.Where it clearly appears on the face of the bill that the contract sued on is...