Blyeth v. Campbell
| Decision Date | 22 December 1925 |
| Docket Number | Case Number: 15367 |
| Citation | 1925 OK 1015,115 Okla. 227,242 P. 770 |
| Parties | BLYETH et al. v. CAMPBELL. |
| Court | Oklahoma Supreme Court |
¶0 1. Bills and Notes--Defenses to Land Notes--Recoupment by Maker for Paving Assessments According to Oral Agreement. C. sued K. C. on promissory notes given as balance of purchase price of real estate sold by B. to K. C., the notes being assigned by B. to C., but subject to all defenses as if in the hands of B. By cross-petition K. C. sought recoupment against the notes for certain paving assessments which B. had agreed to pay as a part of the consideration for the property of K. C. Held, the consideration of K. C. for such recoupment was for money expended under the executed oral agreement in payment of special assessments against the lots purchased by K. C. from B.
2. Same--Parol Evidence of Agreement.
Under paragraph 1, supra, parol evidence is admissible to prove such executed oral agreement of B. to pay such paving taxes, or to recoup K. C. therefor.
3. Disposition of Cause.
The instructions of the court were consonant with paragraphs 1 and 2, supra, and therefore correct; there being no prejudicial error otherwise, the judgment is affirmed.
A. E. Graham, A. W. Anderson, and T. F. Shackelford, for plaintiff in error.
A. L. Emery, for defendant in error.
¶1 E. A. Cook sued Kate D. Campbell to recover on five promissory notes which were a part of a balance of 15 notes of $ 100 each, given as part consideration for two lots, said notes being secured by a mortgage on said lots in the city of Henryetta, purchased by Kate D. Campbell from one Daisy Blyeth, the notes and the mortgage having been, subsequent to the execution thereof, sold by Daisy Blyeth to E. A. Cook.
¶2 The defendant admits the execution of the notes and mortgage. It is conceded that E. A. Cook purchased the notes after maturity, and that the same are subject to such defenses as if in the hands of Daisy Blyeth. The defendant further states and alleges that as a part of said transaction, and as a consideration for the execution of the notes and mortgage, Daisy Blyeth represented to Kate D. Campbell that the property was clear of all incumbrances, taxes, and special assessments, and on such representations the property was purchased by her; that sometime prior to the transaction, the street fronting on the property had been paved, and that Daisy Blyeth represented to her that the paving had not been accepted by the city of Henryetta, and further represented that in case any paving tax became due or payable upon the property and she was required to pay the same, the amount of the taxes might be deducted from the notes to become due, and that on said representations she purchased the property; that after the execution and delivery of the notes, mortgage, and deed referred to, Kate D. Campbell learned that the representations made were false, and that the city of Henryetta, a few days prior to the execution, had accepted the pavement, and that the assessments were at that time a lien on the property; that by reason of such representations, the defendant is entitled to a set-off against the notes for the amount due on the special assessments. The plaintiff replied by general denial. On May 1, 1923, on the cross-petition of Kate D. Campbell, Daisy Blyeth was made a codefendant, and in the cross-petition of Kate D. Campbell, she alleges that she agreed to pay $ 4,500 for the lots because Daisy Blyeth agreed to pay the paving taxes, and further alleged that she never would have purchased the lots for such sum had not Daisy Blyeth agreed to pay the paving taxes thereon, and had she not agreed that in case Kate D. Campbell had to pay any of the assessments the same might be deducted from the notes sued upon. The case was tried to a jury, and a verdict in favor of Kate D. Campbell was rendered for $ 915.47, the amount of said special assessments, less the amount of the notes sued upon.
¶3 The decisive questions, and the only ones presented and argued by the plaintiff in error, and which dispose of the assignments of error, are: (a) That the court erred in admitting parol testimony to vary the terms of a written...
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