Chase v. Watson

• Decision Date: 06 March 1956
• Docket Number: Nos. 36548,36549,s. 36548
• Citation: 294 P.2d 801
• Parties: Loren S. CHASE and Ruth A. Chase, Plaintiffs in Error, v. Henry E. WATSON and Ruth Snowball Watson, Defendants in Error (two cases).
• Court: Oklahoma Supreme Court

Page 801

294 P.2d 801

1956 OK 76

Loren S. CHASE and Ruth A. Chase, Plaintiffs in Error, v. Henry E. WATSON and Ruth Snowball Watson, Defendants in Error (two cases).

Nos. 36548, 36549.

Supreme Court of Oklahoma.

March 6, 1956.

Syllabus by the Court.

1. It is error to permit the reading of a deposition before the jury when the witness is available at the trial, but when it appears that such testimony is not material as affecting any issue in the case, and that the deposition was subsequently withdrawn and the jury was instructed not to consider in evidence any of the matter read from the deposition, the error may be harmless.

2. When the plaintiff's case does not rest entirely on circumstantial evidence, and although there was some in it, it was not essentially necessary for the court to give special instructions on circumstantial evidence; and with a general charge given to the jury to reach its conclusions from all the facts and circumstances appearing in evidence, there is no cause for the plaintiff to complain of a failure of the court to give special instructions on circumstantial evidence.

3. It is largely within the discretion of the trial court to determine the necessity and the length of a recess of a trial proceedings. Held, an order of recess in trial is not to be commended, and should be avoided, but proceedings for the duration of a work-day week under circumstances of a congested trial docket, and a pressing necessity for disposition of other docketed cases, such a recess is not necessarily an abuse of discretion.

4. The law does not prevent a juror during the recess of a trial proceeding from serving as a juror in another case, and where no delay is occasioned thereby, and such other case involves no question or party in common with the first case, prejudice to the parties need not necessarily be presumed by reason of such interim jury service.

5. A sale of real property made under ordinary circumstances is some evidence of its value at the time of the sale, and may generally be shown to prove value at a different time provided the time interval is short and conditions remain substantially the same; but where the sale is a forced sale, as in foreclosure, or for taxes, or on execution, or where the sale was made at a time remote from the time as of which the property is to be valued, or where conditions have materially changed between the time of the sale and time in issue, it is not error for the trial court to exclude such evidence as to a sale of the property and the price paid therefor.

6. Record examined as to an oral statement of law made by the court during the trial. Held, no prejudice resulted and that no substantial rights of the parties were materially affected by said statement.

7. A demurrer to a petition on grounds that there is another action pending between the same parties for the same cause does not lie after consolidation and trial of both of the actions.

8. Record examined. Held, there was competent evidence to sustain the verdict of the jury.

Appeal from the District Court of Okmulgee County; J. I. Pitchford, Judge.

Action by Loren S. Chase and Ruth A. Chase against Henry E. Watson and Ruth Snowball Watson to cancel note and mortgage, and action by the said Watsons and against the said Chases for a recovery on the said note and mortgage. Actions consolidated and so tried. Judgment for the said Watsons in both cases, and the said Chases appeal. Affirmed.

D. F. Rainey and John Barksdale, Okmulgee, B. E. (Bill) Harkey, Oklahoma City, for plaintiffs in error.

Q. D. Gibbs, Okmulgee, T. L. Gibson, Muskogee, for defendants in error.

PER CURIAM.

The Watsons sold and the Chases bought the Adams Hotel in Okmulgee, including the real estate, furniture, fixtures and equipment for $100,000. The Chases paid $35,000 in cash, gave an insurance company a note and mortgage for $40,000 to take up an obligation of the Watsons, and gave the Watsons a note and second mortgage for the balance of $25,000.

After the Chases had been in possession for several months and made several payments on the $25,000 note, they brought suit against the Watsons (No. 26,521) to cancel that note and mortgage. The following week the Watsons sued the Chases in the same court (No. 26,525) to recover the balance due on the note and mortgage.

By order of court the two cases were consolidated for trial and were tried together. The Chases contended the hotel was worth no more than $75,000; that the Watsons were guilty of misrepresentations and fraud, that the $25,000 note and mortgage were obtained by fraud and without consideration, and should therefore be cancelled. The Watsons contended the sale was in all respects fairly made and without fraud or misrepresentation. Thus the issue, as to each of the two consolidated cases, was whether this note with mortgage was a valid obligation of the makers, or was void because of alleged fraud of the payees, the Watsons.

Upon jury trial the Chases presented voluminous testimony and documentary evidence tending to show that they were induced by false and fraudulent representations of the defendants Watson to execute and deliver to the Watsons the certain $25,000 note and mortgage. The defendants Watson presented voluminous testimony and documentary evidence tending to show there were no false or fraudulent representations made by them in connection with their transaction with the plaintiffs, and that said note and mortgage was delivered to them pursuant to contract and for valuable consideration. Without dispute, it was shown that plaintiffs had made payment of three monthly installments on the note and had thereafter refused further payments due under its terms.

The jury was instructed concerning the substance of the plaintiffs' pleadings as to false and fraudulent representations of the defendants and the defendants' pleadings in denial thereof, and the jury was advised that such was the issue to be determined from the evidence as between the plaintiffs and the defendants. The jury was advised they were not to consider the matter of the foreclosure of the mortgage given as security for the note in question, that such was a matter to be considered only by the court.

The jury returned a verdict finding generally for the defendants Watson, and judgment was entered in accord therewith for the defendants Watson, and that plaintiffs Chase take nothing by their suit to cancel the $25,000 note and mortgage. Thereafter, and under the evidence adduced at the aforesaid trial, the court entered a judgment for the defendants Watson, plaintiffs in the second suit, for an amount found due on the $25,000 note and for the foreclosure of the accompanying mortgage.

The plaintiffs Chase, plaintiffs in the first suit, and defendants in the second suit, appeal from both said judgments. The Chases will now be referred to as the plaintiffs, and the Watsons will be referred to as the defendants.

The plaintiffs first assert there was error requiring reversal of the judgment in that the trial court permitted the defendants to present in evidence the depositions of certain persons, when there was not shown any legal cause why the attendance of the deponents could not be procured.

After plaintiffs' objections to the introduction of the depositions had been overruled, and after the depositions were read in evidence, the trial court advised the jury that he was in error in admitting the depositions and that he had made a mistake. He then instructed the jury not to consider in evidence any of the matters that were read in the depositions.

During the reading of the depositions the plaintiffs' counsel interposed a further objection to the reading, on the stated ground that the matters to which the depositions relate neither tend to prove or disprove any of the issues in the case.

By deposition each of the deponents identified himself as an officer of a respective bank. Each stated that at certain times there were sums of money placed on deposit in the respective banks to the cerdit of the defendants. Each stated the total sum of such deposits made during the year preceding the date of the transaction between the plaintiffs and defendants in the purchase of the hotel property.

The record of the trial proceedings reflects that another witness testified to a like total sum deposited in said banks in that period of time and to the credit of the defendants. No objection was made to this testimony, and no attempt was made to refute said testimony. The plaintiffs introduced evidence tending to show that defendants in said period of time received income from illicit business operations, but no question was raised as to the amount of bank deposits made in the name of the defendants. In the depositions read there was no reference to the sources of the deposits received by the banks.

There being no issue presented as to the matters to which the depositions relate, it becomes apparent that had the depositions remained in evidence no prejudice could have resulted. In the circumstances of the immateriality of the testimony presented in the depositions and that the depositions were subsequently withdrawn, and the jury was instructed not to consider in evidence any of the matters that were read from the depositions, the error in permitting the depositions to be read was harmless. The judgment will not be set aside or new trial granted by reason of a harmless error in the trial proceeding. 22 O.S.1951 § 1068; A. & A. Cab Operating Co. v. Mooneyham, 193 Okl. 238, 142 P.2d 974.

The plaintiffs next argue there was reversible error in a failure of the court to instruct on the law of circumstantial evidence.

The plaintiffs cite three certain numbered requested instructions containing references to circumstantial evidence which were rejected by the court. It is asserted there was circumstantial evidence introduced to establish the ultimate facts of fraud and misrepresentation of defendants that in...