Caldwell v. Baxter

• Decision Date: 22 September 1931
• Docket Number: 19760.
• Citation: 12 P.2d 509,158 Okla. 76,1931 OK 538
• Parties: CALDWELL v. BAXTER et al.
• Court: Oklahoma Supreme Court

12 P.2d 509

158 Okla. 76, 1931 OK 538

CALDWELL v. BAXTER et al.

No. 19760.

Supreme Court of Oklahoma

September 22, 1931

Withdrawn Corrected, Refiled, and Rehearing Denied April 26, 1932.

Application for Leave to File Second Petition for Rehearing Denied June 21, 1932.

Syllabus by the Court.

"A general denial is regarded as modified by admissions made in stating a special defense, which is only an application of the broader principle that every pleading must be consistent with itself." Fetzer v. Williams, 80 Kan. 554 103 P. 77, 79.

In all actions, allegations of the execution of written instruments shall be taken as true unless the denial of the same be verified by the affidavit of the party, his agent or attorney. "Denial of 'the same' means denial of the execution; and verified by the affidavit of 'the party' means the party making the denial." Twist et al. v. Colonial Trust Co., 53 Okl. 800, 158 P. 938 940.

The defendant may set forth in his answer as many grounds of defense as he may have, whether they be such as have been heretofore denominated legal or equitable, or both, yet where he makes repugnant defenses, he will be deemed to admit that defense most unfavorable to himself, and the plaintiff may use the admission as evidence to establish that particular allegation in his complaint. Conwill v. Eldridge, 71 Okl. 223, 177 P. 79.

The allegations of a verified pleading, even if not conclusive against the pleader, should be treated as admissions against the person or persons making them, and that as between the denial of a fact alleged in the complaint and the admission of the same fact in some part of the answer, in a separate or special defense, the admission should be taken as true so as to render it unnecessary for the plaintiff to establish that particular fact by testimony. Conwill v. Eldridge, 71 Okl. 223, 177 P. 79.

When plaintiff alleges the execution of a written instrument, this is a specific allegation and under section 287, C. O. S. 1921, the defendant is called upon to meet this issue. To avoid admitting the allegation of the execution of same, the defendant is required to file a verified denial.

Record examined, and held, that the court did not err in overruling the demurrer interposed by the defendant, and in sustaining the objection to the introduction of evidence on behalf of defendant.

Appeal from District Court, Rogers County; Wayne W. Bayless, Judge.

Action by Kate Fox Baxter and another against Geneva Caldwell, executrix of the estate of Charles W. Caldwell, deceased. Judgment for plaintiffs, and defendant appeals.

Affirmed.

RILEY, J., dissenting in part.

Miley, Hoffman, Williams & France, of Oklahoma City, for plaintiff in error.

Holtzendorff & Holtzendorff, of Claremore, and F. H. Reily, of Shawnee, for defendants in error.

McNEILL J.

This is an appeal from the district court of Rogers county. The parties will be referred to as they appeared in the trial court, Kate Fox Baxter and Zella Fox McBride, defendants in error, as plaintiffs, and Geneva Caldwell, executrix of the estate of Charles W. Caldwell, deceased, plaintiff in error, as defendant.

On March 17, 1925, Kate Fox Baxter, and Zella Fox McBride, filed their petition in said district court against said defendant. Said plaintiffs alleged therein the execution and delivery of a certain promissory note to Mrs. Josephine Fox by Charles W. Caldwell, which note was in the sum of $1,500, dated April 17, 1920, being payable on demand, after date, to the order of Mrs. Josephine Fox, with interest thereon at 8 per cent. per annum. Said plaintiffs allege that said Josephine Fox is deceased, and that said Charles W. Caldwell, the maker of said note is also deceased; that said plaintiffs are the successors in law, the owners of said note; and that the said Geneva Caldwell is the executrix of the estate of Charles W. Caldwell, deceased.

Plaintiffs further allege that the claim for the amount of the note was duly presented to said executrix and by said executrix on February 21, 1925, rejected, and that the same was also, on the 25th of March, 1925, rejected by the judge of the county court of Rogers county, Okl. Plaintiffs pray for judgment for the amount of said note.

A demurrer was filed to the amended petition, and the same was overruled and defendant filed her answer which, in part, is as follows:

"Comes now the defendant and for her answer to the plaintiffs' petition, alleges and states:

I. That the defendant denies each and every material allegation contained in plaintiffs' petition, except such only as are hereinafter specifically admitted, qualified or explained. * * *

III. This defendant only being the executrix of the estate of Charles W. Caldwell, deceased, and having no personal knowledge or information as to whether or not Charles W. Caldwell, deceased, made, executed and delivered to Josephine Fox, deceased, the promissory note, sued upon in this cause of action, she, therefore, denies the execution and delivery of said promissory note. * * *"

Said defendant also for further answer states in paragraph IV of said answer: "* * * That should it be proven to the satisfaction of the court that the said Charles W. Caldwell in his lifetime made, executed and delivered the promissory note, * * * and set out in plaintiffs' petition, that then and in that event, the defendant states that the execution and delivery of said promissory note was wholly without consideration and in this connection, the defendant desires to state that if it is the promissory note of the said Charles W. Caldwell that it was made, executed and delivered to the said Mrs. Josephine Fox for the following reasons and for no other, and that is this: * * * The said Mrs. Josephine Fox being a relative of the said Charles W. Caldwell and this defendant, she approached the said Charles W. Caldwell and requested him to receive and accept the $1,500.00 of her money for the purpose of investing said amount in certain mining stock; that the said Charles W. Caldwell received and accepted the said $1,500.00 for the purpose of investing said money in certain mining stock for the benefit of the said Mrs. Josephine Fox and for the purpose, and the sole purpose only, the said Charles W. Caldwell, made, executed and delivered some kind of a memorandum to show that he had received the said sum of money and for no other purpose, to invest said money for the said Mrs. Josephine Fox and that the said Josephine Fox was to hold and retain the said memorandum until the said Charles W. Caldwell had invested said $1,500.00 in mining stock as agreed upon or until he had returned said money to the said Josephine Fox."

In paragraph V said defendant admits receiving from Josephine Fox $1,500 and investing same in certain mining stock, which defendant now tenders into court to be delivered to plaintiffs. The answer was verified as follows:

"State of Oklahoma, County of Rogers, ss.:

Geneva S. Caldwell, of lawful age, being first duly sworn, says:

That she is the duly appointed, qualified, and acting executrix of the estate of Charles W. Caldwell, and that she is the defendant in the above and foregoing answer to plaintiffs' petition and knows and understands the facts and allegations alleged and contained in said answer and that this affiant believes the facts and allegations stated in the above and foregoing answer to be true."

In the opening statement of defendant to the court and jury, counsel for the defendant stated, on page 62 of the record, as follows: "The defendant in this case, on account of the fact of being the wife and the widow of Dr. Caldwell, and having the work of the keeping of the home, of course necessarily did not have knowledge of the facts that constituted the business affairs of Dr. Caldwell, and for that reason, not having the specific knowledge, she, as the administratrix of the estate, denies the execution of this note by Dr. Caldwell, but states to the Court and Jury that, if it is proven or it develops that it is Dr. Caldwell's note given to Josephine Fox, the evidence will show by Mrs. Caldwell that the note was given for this purpose: Josephine Fox, the aunt of Mrs. Caldwell, came to the home of Dr. Caldwell and Mrs. Caldwell to stay some time, probably to make her home; that will be disclosed to you by Mrs. Caldwell; and at the time she came there-if that is the note in question-she had $1,500. in cash with her. The evidence will show that Mrs. Caldwell and Dr. Caldwell, both of them, did not want that money to remain in the home; and they requested her to deposit this money in the bank at Chelsea. She being an elderly lady, the evidence will show, she had peculiarities about banks; you know, some people do have; and she would not deposit the money in the bank. Then Dr. Caldwell, as will be testified, told her that he would take the money and deposit it for her. No, she didn't want that done. Then she requested Dr. Caldwell to take the money and invest it for her in some productive stock or in some way that it might be a profitable investment to her."

Also, on page 64 of the record:

"* * * At this time the evidence, I think, will show to you that Mrs. Fox requested, in some way, that Dr. Caldwell invest her money in this particular stock. I think the proof will show that at this time there was none of the stock available, but at some time in the future, I think the evidence will show, the Doctor told her, probably, it would be invested in that stock.

Now with that understanding between them, Dr. Caldwell-if this is the note in question-gave her a demand note, payable Now, just to recognize the fact that he took the money rather than to have it just in the home there, until he could deposit it in the bank for her,...