Clark v. Sallaska
| Decision Date | 30 July 1918 |
| Docket Number | 9235. |
| Citation | 174 P. 505,70 Okla. 293,1918 OK 450 |
| Parties | CLARK v. SALLASKA. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
A petition which sets forth a special warranty made by the payee of a promissory note at the time of transferring the same, but does not allege a breach or failure of such warranty, does not state a cause of action against the payee.
An allegation in the petition of plaintiff, in a suit on promissory notes against the maker thereof, in which it is sought also to enforce liability against the payee who transferred such notes, that at the time of the sale and transfer the payee represented to the plaintiff that there was absolutely nothing wrong with the notes, and that there were no defects and infirmities about them, or any equities existing between the payee and the maker, does not state grounds for action against the payee, unless there is a further allegation setting out defects, infirmities, or equities so existing.
In case a note has been indorsed by the payee for the purpose of being used as collateral and afterwards, on the payment of the principal debt, the note is returned to the payee, and he sells and transfers the same to another, who afterwards brings suit thereon against the maker and the payee, it is competent to show the facts as to such indorsement, and that as a part of the contract made and executed at the time of the sale and transfer, the liability of the payee as indorser was, by executed oral contract, limited so as to extend only as to a warranty against equities between the maker of the note and the payee.
A provision in a promissory note waiving presentment for payment, notice of payment, protest and notice of protest is sufficient to relieve the holder of the note, who brings action against an indorser thereon from pleading and proving notice of dishonor.
In the trial court judgment was rendered against the defendant who as shown by the files in the office of the court clerk, duly filed motion for new trial within three days from the rendition of the judgment. Afterwards the plaintiff filed motion to strike the motion for new trial for the alleged reason that the files did not speak the truth, and that the motion for new trial was not filed within the time required by law, which motion to strike the trial court overruled. The motion for new trial was also overruled, and defendant appeals, but the plaintiff does not assign any error. Held that, in the absence of error duly assigned by the plaintiff, the action of the trial court in overruling the motion to strike cannot be considered by this court.
Commissioners' Opinion, Division No. 1. Error from County Court, Custer County; Oscar E. Houston, Judge.
Action by J. J. Sallaska against J. Johnson and H. H. Clark. Judgment against defendants, and defendant H. H. Clark brings error. Reversed with directions.
T. W Jones, Jr., of Weatherford, for plaintiff in error.
Eugene Forbes, of Weatherford, and A. E. Darnell, of Arapaho, for defendant in error.
The plaintiff brought action against the defendant on two promissory notes made by the defendant J. Johnson, payable to the order of the defendant H. H. Clark, and by the payee transferred after maturity to the plaintiff, alleging as a cause of action against the payee:
"That at the time of the sale and transfer of said notes by said H. H. Clark to this plaintiff, the said H. H. Clark represented to this plaintiff that there was absolutely nothing wrong with the said notes, and that there were no defects or infirmities about them, nor any equities existing between the said H. H. Clark and the said defendant J. Johnson, maker of the notes."
It is nowhere alleged that the notes were indorsed by H. H. Clark, or that any of the representations alleged to have been made by the said H. H. Clark had failed or were in any respect untrue. Each of the defendants was duly served with summons, and, defendant J. Johnson defaulting, the court, on request of the plaintiff, rendered judgment against Johnson for the full amount due on said notes. The defendant H. H. Clark filed separate demurrer, on the ground that the petition did not state a cause of action against him, which demurrer was by the court overruled, exceptions being preserved. Thereafter he filed separate answer, and on a hearing before the court without a jury judgment was rendered in favor of the plaintiff and against the defendant H. H. Clark for the same sum as the judgment theretofore rendered against the maker of the notes. The judgment against Clark shows on its face to have been rendered November 23, 1916, motion for a new trial having been filed by Clark on November 25, 1916. The plaintiff filed motion to strike the motion for a new trial from the files for the alleged reason that the same was not filed within three days after the rendition of the judgment. On the same day the plaintiff also filed what was styled application for order nunc pro tunc to correct the record, and show that the judgment was rendered on the 15th day of November, 1916, and not on the 25th day of such month. The court overruled both of the motions of the plaintiff. The motion for new trial was also overruled, and the defendant H. H. Clark duly appeals. The plaintiff did not appeal, and has assigned no error in this court. The defendant Clark urges as error: (1) The overruling of his demurrer to the petition; (2) the overruling of his demurrer to plaintiff's evidence; (3) overruling his motion at the close of the testimony for judgment against the plaintiff in favor of the defendant.
From a careful reading of the petition we are at a loss to understand upon what theory the pleader expected to establish liability on the part of Clark. It is not alleged that Clark in due course before maturity indorsed the notes, or that he indorsed the notes at all, it being only...
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