Berry v. Oklahoma State Bank

• Decision Date: 03 August 1915
• Docket Number: 3863.
• Citation: 151 P. 210,50 Okla. 484,1915 OK 590
• Parties: BERRY v. OKLAHOMA STATE BANK.
• Court: Oklahoma Supreme Court

151 P. 210

50 Okla. 484, 1915 OK 590

BERRY v. OKLAHOMA STATE BANK.

No. 3863.

Supreme Court of Oklahoma

August 3, 1915

Syllabus by the Court.

The statute, providing that in all actions allegations of the execution of written instruments and indorsements thereon shall be taken as true unless denied under oath, is specific and requires a specific allegation of the indorsements in the petition, before the defendant is required to deny them under oath. It is the allegation of indorsements that the defendant is required to deny under oath, and not some indorsement not pleaded, but merely shown by an exhibit attached to the petition. And, unless the indorsements are specifically alleged in the petition, the issues may be raised by an unverified denial.

A credit on a note to toll the statute must be a voluntary payment. And the application, by the holder of the note, of the proceeds of the sale of securities hypothecated at the time of the making of the note, as a credit on the note, does not toll the statute; for the reason that it does not constitute a new promise to pay, or a new acknowledgment of the indebtedness. But is only an enforcement of the original obligation and promise.

Commissioners' Opinion, Division No. 2. Error from Superior Court Pottowatomie County; George C. Abernathy, Judge.

Action by the Oklahoma State Bank against J. M. Berry. Judgment for plaintiff, and defendant brings error. Reversed.

W. S Pendleton, of Shawnee, for plaintiff in error.

Blakeney & Maxey, of Muskogee, for defendant in error.

BRETT C.

This is an action in which the defendant in error, the Oklahoma State Bank, sued the plaintiff in error, J. M. Berry, on a note with certain payments indorsed thereon and attached a copy of said note to its petition as part thereof. The defendant below, Berry, to this petition, interposed a general denial, and specifically denied having made the payments indorsed on the note, and pleaded the statute of limitation, claiming the note was due more than five years prior to the filing of the suit, and denied the payment of interest on the note, for the purpose of making effective the statute of limitation. The answer was not verified. The court instructed the jury to return a verdict for the plaintiff, which was done; and judgment was rendered in favor of the plaintiff below, and against the defendant below, for $1,211.80 and $121.18 attorney fee. From this judgment the defendant below appeals to this court.

There are two questions raised in the petition for rehearing, one of which, and the one which is really decisive, seems not to have been relied upon or urged in the original brief of the plaintiff in error. In the original brief the plaintiff in error presses the proposition that the class of indorsements on the note in question is not the kind or class that the statute requires to be denied under oath, and says:

"There is no precedent for the holding of the court that a mere memorandum of an interest payment on the back of the note, while in the hands of the payee, can be construed as an indorsement under section 5648 of the statute, so as to require the indorsements to be denied under oath. I have searched diligently for such a precedent, but have found none. Every case I have been able to find, which treats the question, always involves the fact of an actual indorsement of some person's name on the back of the instrument, and the issue is always as to the liability of such indorser. Indeed, on a casual reading of the statute it seems impossible to draw any other conclusion than that it was intended to apply to allegations of the indorsement of a person's name on the back of the instrument."

And both parties treated the allegation of the indorsements as sufficient, but plaintiff in error complained that the class of indorsements alleged were not the class the statute required to be denied under oath. But in the petition for rehearing emphasis is laid on the fact, by plaintiff in error, "that there is no allegation of the indorsement of any credit for interest paid," which presents an entirely different issue. The contention in the original brief as above set out, we think, is wholly without merit. The contention in the petition for rehearing is one deserving attention. It is not the policy of the court to scrutinize pleadings about which there seems to be no controversy. Hence the question as to the pleadings now raised was not gone into in the original opinion because the sufficiency of the pleadings was not questioned. In this opinion the court does not wish to be understood as laying down the rule that it is permissible for a litigant, when he has tried and lost on one theory, to come back and try on an entirely different one. But as that question has not been directly passed upon by this court, and no issue is raised on it now, we will consider this particular case upon the new issues raised by the petition for rehearing.

The statute is:

"In all actions, allegations of the execution of written instruments and indorsements thereon * * * shall be taken as true unless the denial of the same be verified by the affidavit of the party, his agent or attorney." Section 4759, Revised Laws 1910; section 5648, Snyder's Compiled Laws 1909.

Then the question is: Was there such an allegation of the indorsements in the petition as would require the defendant to deny it under oath?

The only reference to the indorsement of payments is found in paragraph 4 of the petition, and is as follows:

"That the interest on the said note has been paid to July 20, 1906, and that on April 15, 1907, there was credited on the said note the sum of $100, the proceeds of the sale of the security hypothecated at the time of the making of the same."

The first clause only says "that the interest on said note has been paid to July 20, 1906," but does not plead that the payment is indorsed on the note; consequently the defendant would not be required to deny that under oath, for no indorsement of it on the note is pleaded. And the fact that a...