City Nat. Bank of McAlester v. Edwards
| Decision Date | 16 September 1924 |
| Docket Number | 14086. |
| Citation | 229 P. 487,100 Okla. 202,1924 OK 695 |
| Parties | CITY NAT. BANK OF McALESTER v. EDWARDS. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
The rule which excludes parol evidence when offered to contradict or vary the terms, provisions, or legal effect of written instruments has no application to collateral undertakings or cases in which the written instrument was executed in part performance of an entire oral agreement.
Where not otherwise objectionable, testimony of witnesses adduced at a former trial between the same parties, involving the same subject-matter which has been transcribed by the court reporter from his stenographic notes and certified to by him incorporated in the case-made, the case-made signed and settled by the trial judge, and the same filed with the clerk of the district court, is admissible in evidence as the deposition of said witnesses, although the reporter's notes were not filed in the district court as provided by section 1792. R. L. 1910 (section 3071, C. S. 1921).
Where all the controverted questions of fact in the trial of a cause are properly submitted to the jury by the instructions of the court, their determination thereon will not be disturbed on appeal, where the evidence introduced fairly sustains the jury's verdict.
Record examined, and held, that no material error was committed in the admission or rejection of testimony.
Commissioners' Opinion, Division No. 5.
Appeal from District Court, Pittsburg County; Harve L. Melton Judge.
Action by the City National Bank of McAlester against Sarah J Edwards. From a judgment for defendant, plaintiff appeals. Affirmed.
George M. Porter, John L. Fuller, and Arnote, McCain & Emory, all of McAlester, for plaintiff in error.
O. A Keach, of Wichita, Kan., and A. C. Markley, of McAlester, for defendant in error.
This was an action brought by the plaintiff in error, the City National Bank of McAlester, as plaintiff, against the defendant in error, Sarah J. Edwards, on a promissory note in the sum of $6,500, dated April 3, 1913, due 60 days after date, which note had been reduced to $3,087.33 at the time suit was commenced thereon on the 28th day of March, 1916.
The answer of defendant admits the execution of the note and then alleges in minute detail the facts and circumstances which induced the defendant to sign the note in question, and alleges that if proper credits are made thereon said note would be fully settled. The case was submitted to a jury and a verdict returned in favor of the defendant. Motion for a new trial was overruled, judgment entered in favor of the defendant, from which judgment the plaintiff has duly appealed.
There are a number of assignments of error, all of which are submitted and discussed in the brief of plaintiff, the City National Bank of McAlester, under three propositions.
The first proposition is that the material defensive matter pleaded in the answer of defendant, together with evidence of the defendant and of certain witnesses, was incompetent and not defensive, for the reason that the same were verbal, contemporary agreements, and could not change and vary the expressed terms of a written contract. So far as this first proposition is concerned we think it is not necessary to discuss the evidence introduced on the trial because of the fact that this case has been before this court upon substantially the same state of facts as in the present record (Edwards v. City National Bank, 83 Okl. 204, 201 P. 233), and the question as to the competency of this evidence was decided adversely to plaintiff's contention.
It appears that on the first trial of this case in the district court the plaintiff bank made proof of the execution of the note and rested, whereupon the defendant introduced her evidence in support of the allegations of her answer. The plaintiff offered no evidence in rebuttal thereto, and the plaintiff demurred to the evidence of defendant as not constituting a defense to the plaintiff's action on the note, which demurrer was sustained by the trial court. The plaintiff moved the court to instruct the jury to return a verdict in favor of the plaintiff for the amount of the note sued upon, whereupon the court directed the jury to return a verdict in favor of the plaintiff. The court was then requested to sustain the attachment upon the residence of the defendant, and the same was done. The defendant appealed to this court.
In the first paragraph of the syllabus in Edwards v. City National Bank, supra, it is said:
"The rule that a written contract cannot be altered, changed, or terms varied, in the absence of allegations and proof of mistake, fraud, or failure of consideration, by parol proof, does not apply invariably and without exceptions, and one of those exceptions is that, where a transaction is entered into between parties, the terms of which are yet to be carried out, in other words, are executory, as future covenants and promises, some of the provisions of which are verbal and some one or more are in writing, the above rule as to varying the terms of a contract does not apply, and the parol terms and provisions of said contracts may be proved, and this is upon the theory that the main transaction rests in parol and the written portion being an incident connected with the main transaction."
In the body of the opinion it is said:
"We have reviewed and examined the evidence, and find that, under the pleadings and proofs adduced and uncontradicted, the defendant has made proofs supporting the answer, and that in the absence of any rebuttal proofs the trial court committed error in sustaining the demurrer to the evidence and in instructing a verdict for the plaintiff bank."
In reversing the cause this court announced the rule applicable to this case as follows:
"The rule which excludes parol evidence when offered to contradict or vary the terms, provisions, or legal effect of written instruments has no application to collateral undertakings or cases in which the written instrument was executed in part performance of an entire oral agreement." Stuart v. Meyer (Tex....
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