Choctaw Lumber Co. v. Waldock

• Decision Date: 24 February 1920
• Docket Number: 7866.
• Citation: 190 P. 866,78 Okla. 232,1920 OK 81
• Parties: CHOCTAW LUMBER CO. v. WALDOCK.
• Court: Oklahoma Supreme Court

190 P. 866

78 Okla. 232, 1920 OK 81

CHOCTAW LUMBER CO. v. WALDOCK.

No. 7866.

Supreme Court of Oklahoma

February 24, 1920

Rehearing Denied May 25, 1920.

Syllabus by the Court.

In an action for the recovery of money on promissory notes although involving the foreclosure of a mortgage on real estate, issue being joined as to the amount due, defendant is entitled to a trial by jury as a matter of right.

Where an examination of the record does not show that the error complained of has probably resulted in a miscarriage of justice or constitutes a substantial violation of a constitutional or statutory right a new trial will not be granted. Section 6005, Revised Laws 1910.

The trial court did not err in permitting defendant to open and close the case where the defendant admitted the execution delivery, and assignment of the notes sued upon, and pleaded a separate agreement between himself and the assignor of the notes as a defense to payment of the notes, and where the notes show on their face they were past due when the assignment was made.

A contract in writing may be altered by a contract in writing. Section 988, Rev. Laws 1910.

The determination of the trial court, based upon supporting evidence that a written agreement is lost, and that secondary proof of the terms of the lost writing is admissible, will not be disturbed on appeal.

Where the judgment of the trial court is reasonably supported by the evidence this court will not weigh conflicting testimony but will affirm the judgment.

Additional Syllabus by Editorial Staff.

A motion for a new trial where there has been a verdict by jury calls for a re-examination by the same court of the issues of fact, as each party is entitled to have the intelligent opinion of both the court and the jury upon the evidence introduced.

Error from District Court, McCurtain County; Summers Hardy, Judge.

Action by the Choctaw Lumber Company against A. J. Waldock to recover money on four promissory notes and to foreclose a mortgage securing the payment of these notes. Judgment for defendant, and plaintiff brings error. Affirmed.

John S. Kirkpatrick and H. M. Kirkpatrick, both of Kansas City, Mo., and Ames, Chambers, Lowe & Richardson, of Oklahoma City, for plaintiff in error.

McPherren & Cochran, of Durant, for defendant in error.

PER CURIAM.

Action was begun by plaintiff February 24, 1913, to recover on four certain promissory notes and to foreclose a mortgage upon certain timber lands in McCurtain county, securing the payment of these notes. These notes were dated December 21 1909, and were for $10,000, $20,000, $10,000, and $10,000, respectively, with 6 per cent. interest from date, due one, two, and three years, respectively, after date; it being provided in the fourth note that should Waldock pay the three first-mentioned notes, aggregating $40,000, on or before December 21, 1910, that the fourth note for $10,000 should be void and of no effect.

The material allegations of the plaintiff's petition are that the defendant, A. J. Waldock, executed and delivered the promissory notes sued upon, and the mortgage securing the payment of same, to the Paine Lumber Company, Limited, a corporation, and became liable and bound to pay to the said Paine Lumber Company, Limited, the amount of said notes; that certain payments had been made to the Paine Lumber Company, Limited, on said notes; that the said notes by written agreement all matured and became payable upon the failure of the defendant to pay any part of the principal or interest when due; that on the 5th day of June, 1912, the said notes and mortgage securing the same were sold, indorsed, transferred, and delivered to the plaintiff, the Choctaw Lumber Company, for value, in the usual course of business; that the said notes and mortgage were assigned to the plaintiff by the Paine Lumber Company in writing and a copy of the written assignment is attached to the petition as an exhibit; that the conditions of the said notes and mortgage as to payment of principal and interest had been broken, and the whole of the principal and interest was due and unpaid to the plaintiff, and the plaintiff prays judgment upon the said notes, and a decree of foreclosure, and sale of the property covered by the mortgage to pay the said judgment.

The material part of the answer of the defendant is as follows:

"The defendant admits the execution of the notes and mortgage described in the petition of the plaintiff, and states the fact to be that the said notes were executed by the defendant to the said Paine Lumber Company in consideration of certain stock then owned and held in the Choctaw Lumber & Veneer Company, a corporation, with a veneer plant located at Garvin, Okl., and which was transferred by the said Paine Lumber Company to the defendant; that it was agreed and contracted in writing by and between the defendant, A. J. Waldock, and the said Paine Lumber Company that in consideration of the purchase of the said stock and certain indebtedness held by the said Paine Lumber Company against the said Choctaw Lumber & Veneer Company, that the Paine Lumber Company would take the entire output of the said plant of the Choctaw Lumber & Veneer Company for two years at the price of $20 per thousand feet; that by reason of the said agreement on the part of the Paine Lumber Company to so take the said entire output of the said plant the defendant was induced to purchase the said stock of and from the said Paine Lumber Company in the amount of $179,000, being almost the entire capital stock of the said Choctaw Lumber & Veneer Comany; that the entire output of the said plant would average the amount of 20,000 feet per day and the cost of manufacture would not exceed $10 per thousand feet, making a profit of about $200 per day in operating the said plant under the contract with the said Paine Lumber Company. That defendant cannot attach contract as same is lost.

The defendant further states that the Paine Lumber Company under the said contract by and between the said company and the defendant did take less than one-half of the output of the said plant and refused to take all the output or to pay for the amount taken upon the inspection of the person agreed upon by the defendant and the said Paine Lumber Company.

The defendant further states that by reason of the said refusal of the Paine Lumber Company to take the entire output of the said plant and to pay for the same as per the said contract the said stock so purchased by the defendant in the said plant of and from the said Paine Lumber Company was rendered worthless, and the said indebtedness held by the Paine Lumber Company against the said Choctaw Lumber & Veneer Company and transferred to the defendant in consideration of the notes herein sued upon was rendered uncollectible. That by reason of the failure and refusal of the said Paine Lumber Company to fulfill the said contract the said plant was forced to remain idle for more than one-half of the time during the said two years at a cost of $1,000 per month, or a total cost of $24,000, and a large amount of timber and material ruined, and the said Choctaw Lumber & Veneer Company was forced into involuntary bankruptcy, and the stock therein was a total loss, and was and is worthless, and no part of the unpreferred debts of the said company was or could be paid.

The defendant states that the above facts were known to the plaintiff, the Choctaw Lumber Company, at the time the said notes were assigned to the plaintiff; that the said notes were due and unpaid at the said time of the alleged transfer, and that the plaintiff took the same charged with the defense

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