Bartels v. Suter

• Decision Date: 06 March 1928
• Docket Number: Case Number: 17808
• Citation: 266 P. 753,1928 OK 151,130 Okla. 7
• Parties: BARTELS v. SUTER.
• Court: Oklahoma Supreme Court

1928 OK 151
266 P. 753
130 Okla. 7

BARTELS
v.
SUTER.

Case Number: 17808

Supreme Court of Oklahoma

Decided: March 6, 1928

Syllabus

¶0 1. Judgment -- Judgment Notwithstanding Verdict--When Warranted.

In the absence of special findings contrary to the general verdict, a trial court is without authority to render judgment notwithstanding the verdict, unless the same is warranted by the pleadings.

2. Bills and Notes--Accommodation Note--Defense of Lack of Consideration Available to Maker Against Purchaser for Value After Maturity.

Where a party executes to a bank his promissory note, due in six months, without consideration, solely as an accommodation to the payee bank, and six days after maturity of the note, while the same is then held by payee bank, requests surrender and return of the note, and is advised by the cashier that he was busy just then and that the note would be delivered the next time party was in, and shortly thereafter such note is sold, transferred, and indorsed without recourse by the bank, and later suit is filed by transferee against the maker to recover thereon, held, that, in view of the provisions of the Negotiable Instruments Act, sections 7728 and 7698, C. O. S. 1921, which make no exception in favor of accommodation paper (section 7699, C. O. S. 1921), the defense of want of consideration was available to the maker of such accommodation note as against the holder thereof for value who acquired the same after maturity.

3. Same--Judgment Against Accommodation Maker not Sustained.

Record examined, and held, insufficient to sustain judgment of the trial court.

S.W. Hayes, D. A. Richardson, A. W. Gilliland, F. Hiner Dale, and Jack Harris, for plaintiff in error.

Rizley & Loofbourrow and Wade H. Loofbourrow, for defendant in error.

LEACH, C.

¶1 This action was instituted in the district court of Texas county by A. H. Suter, defendant in error here, as plaintiff, against Henry Bartels, plaintiff in error here, to recover judgment on two promissory notes executed by the defendant, Bartels, in favor of the Texas County National Bank.

¶2 One note was for the sum of $ 3,000 dated April 2, 1923, due six months thereafter, and the other was for $ 375 dated July 25, 1923, due in 90 days.

¶3 The notes sued upon were transferred, after maturity, and without recourse, by the payee bank to E. T. Guymon, and thereafter transferred, without recourse, to the plaintiff. The defendant, Bartels, pleaded that the $ 3,000 note was executed for the accommodation of the payee bank; that he received no consideration for the same, and that the $ 375 note was executed upon certain conditions respecting a sale of land, wherein the bank was to have deducted the amount of the note from certain monies held by the bank, which it failed to do; that by reason of such failure he was released from liability; that both notes were transferred after maturity. The plaintiff, Suter, in reply, alleged that the $ 3,000 note was executed to the payee bank as a renewal of a former note for the same amount, which former note was executed to take up the certain note of a third party, and to enable the Texas County Bank to nationalize, and, as to the $ 375 note, denied that the same was executed under the conditions alleged, and alleged the defendant, maker of such note, by paying certain of the monies direct, waived the alleged conditions, if any.

¶4 Upon a trial of the cause the court advised and instructed the jury as to the theory and contention of each party as to the purpose and conditions under which the notes were executed.

¶5 Certain interrogatories were propounded to the jury embodying the question of whether the consideration for the $ 3,000 note was the taking up of the Costner note, and did the defendant execute the $ 3,000 note so that the same could be used for the purpose of deception in the nationalizing of the Texas County National Bank, both of which interrogatories were answered in the negative.

¶6 A general verdict was rendered in favor of the defendant. Motion for judgment notwithstanding the verdict was filed by the plaintiff, as to plaintiff's first cause of action, which involved the $ 3,000 note. The trial court, notwithstanding the verdict, rendered judgment in favor of the plaintiff on the $ 3,000 note upon the theory that it was an accommodation note in the hands of the plaintiff, who paid value therefor, and on the $ 375 note, upon the theory that defendant wholly failed to establish his alleged defense. Defendant filed his motion for a new trial, which was overruled, and he brings the cause here for review.

¶7 Six assignments of error are set forth in the petition in error, which are disposed of, under argument, in the following order: First. "Error of trial court in sustaining plaintiff's motion for judgment, notwithstanding the verdict."

¶8 Under this head it is urged by plaintiff in error that the trial court had no authority to render judgment because such action was not in accord with the provisions of section 682, C. O. S. 1921, and was in conflict with the holding of this court in the case of Barnes v. Universal Tire Protector Co., 63 Okla. 292, 165 P. 176, and similar cases, holding, in effect, that where...