Brotherton v. McWaters, 41682

• Decision Date: 30 January 1968
• Docket Number: No. 41682,41682
• Citation: 438 P.2d 1
• Parties: 4 UCC Rep.Serv. 1155, 1968 OK 8 C. D. BROTHERTON, R. L. Brotherton and James R. Brotherton, a partnership, d/b/a Brotherton's Automotive, Plaintiffs in Error, v. Lloyd McWATERS, Defendant in Error.
• Court: Oklahoma Supreme Court

Page 1

438 P.2d 1

4 UCC Rep.Serv. 1155, 1968 OK 8

C. D. BROTHERTON, R. L. Brotherton and James R. Brotherton a partnership, d/b/a Brotherton's Automotive Plaintiffs in Error, v. Lloyd McWATERS, Defendant in Error.

No. 41682.

Supreme Court of Oklahoma.

Jan. 30, 1968.

Syllabus by the Court

1. The defense of want or failure of consideration provided in 12A O.S.1961, § 3--408 is available, subject to the restrictions contained therein, to an indorser of an instrument as well as the drawer thereof.

2. Where the consideration for an instrument is disputed by one of the parties thereto and there is conflicting competent evidence, such issue is properly submitted to the jury.

Appeal from the Court of Common Pleas of Oklahoma County; Ben LaFon, Judge.

Action by plaintiffs to recover the amount of a check indorsed to them by defendant. From verdict and judgment for defendant and order overruling motion for new trial, plaintiffs appeal. Affirmed.

Pickel & Pickel, Oklahoma City, for plaintiffs in error.

West, Procter & Moore, Oklahoma City, for defendant in error.

WILLIAMS, Justice.

This is an appeal from a judgment of the court below, sitting with a jury, in an action wherein plaintiffs sought to recover the amount of a certain check indorsed to them by defendant. On appeal, the parties appear in the same relative position as in the trial court and hereinafter will be referred to as there designated.

In their petition below, plaintiffs alleged that on February 8, 1964, defendant requested that they furnish, at reasonable prices agreed upon by the parties, labor and parts to repair defendant's diesel truck. Plaintiffs further alleged that in full payment of the balance remaining on such labor and parts after other sums had been paid, defendant indorsed and delivered to them a check in the amount of $690.00, payable to the order of defendant and drawn by a broker on a Colorado bank; that the drawer stopped payment on such check and defendant, although demand has been made upon him, has refused to pay the amount of such check; and, that plaintiffs were entitled to judgment against defendant for the amount of such check.

Defendant's answer generally denied plaintiffs' allegation, but admitted that defendant indorsed the check and that payment was stopped on such check. Defendant's answer further alleged that the repairs on his truck were undertaken without his permission; that the sum charged for the repairs included amounts for new parts, although plaintiffs actually made repairs with used parts; that the repair work was done in an unworkmanlike manner; and, that as a result of the manner in which the repairs were made, defendant's truck experienced mechanical difficulty which required the truck to be taken out of service and again repaired.

In their reply, plaintiffs denied all the allegations contained in defendant's answer.

At trial, the parties stipulated to admit into evidence the check in question herein. Defendant stipulated that by such check the plaintiffs had established a prima facie case and proceeded to present his defense to the action.

In summary, defendant testified that he was a trucker engaged in hauling produce to market, and while engaged in such business in February, 1964, his truck experienced mechanical failure in Colorado and had to be towed to Oklahoma City by a fellow trucker, a Mr. Green. Defendant stated that when they arrived in Oklahoma City he intended to take his truck to a particular firm and place it in storage until he decided what to do with it, but as it was Sunday and such firm was closed, the truck was towed to the service station and garage of plaintiffs, with whom his friend, Mr. Green, was acquainted.

Defendant further testified that on the following morning after towing the truck into plaintiffs' garage, he returned to the garage and found plaintiffs pulling the truck into their service station, at which time he told plaintiffs he did not wish to repair the truck, but did agree to allow them to disassemble the diesel engine to determine if it were in sufficient condition to exchange for a rebuilt motor. Before the engine was completely disassembled, defendant went to his home in Arkansas, and, upon returning to Oklahoma City, stated that he found that plaintiffs had proceeded to repair the engine and informed him they then had expended $1860.00 in labor and parts on the truck for which he (defendant) must pay before the truck would be released to him. Some five or six weeks then elapsed before defendant obtained the necessary money to pay for the repairs of his truck, and in late March, 1964, he received the truck after indorsing and delivering to plaintiffs the check involved herein and paying the balance of the repair bill in cash. Defendant produced plaintiffs' repair bill which he maintained showed the full amount of $1981.08 he had paid.

After receiving the truck, defendant stated that he noticed that it was not running well, was producing little power, and that certain instrument gauges were not connected. He immediately drove the truck to another garage where the engine was tuned and the heat indicator was connected. He then identified certain repair bills, which were admitted in evidence over plaintiffs' objections, relating to repairs made on the truck within seven to eight months after plaintiffs' repairs were completed. In effect, defendant testified that these subsequent repairs were made on the same parts previously repaired or replaced by plaintiffs.

At the close of defendant's evidence, plaintiffs moved for a directed verdict on the ground that as the drawer of the check and not defendant had stopped payment thereof, defendant was not entitled to raise failure of consideration as a defense to the action. This motion was overruled and plaintiffs submitted their testimony in rebuttal.

James R. Brotherton, one of the plaintiffs and a partner in Brotherton Automotive, testified that he did the repair work on defendant's truck; that when he began the disassembling of the engine, defendant was present and aided him; that although defendant left Oklahoma City several days after the work began, he returned within one or two days and was shown the disassembled engine parts; that defendant authorized witness to have parts checked and repaired and to purchase necessary parts; and, that witness himself obtained some parts necessary for the repair. This witness further testified...