Clowers v. Snowden

• Decision Date: 24 June 1908
• Citation: 96 P. 596,21 Okla. 476,1908 OK 126
• Parties: CLOWERS et al. v. SNOWDEN et al.
• Court: Oklahoma Supreme Court

96 P. 596

21 Okla. 476, 1908 OK 126

CLOWERS et al. v. SNOWDEN et al.

Supreme Court of Oklahoma

June 24, 1908

Syllabus bye the Court.

A promissory note, providing: "If collected by an attorney, a fee of $10 to be charged"-is nonnegotiable.

[Ed Note.-For cases in point, see Cent. Dig. vol. 7, Bills and Notes, § 403.]

In a suit to foreclosure a mortgage securing a debt, evidenced by a nonnegotiable promissory note, it was error for the court to exclude evidence tending to show want of consideration notwithstanding plaintiff be an innocent purchaser for value and before maturity.

Error from District Court, Kingfisher County; C. F. Irwin, Judge.

Action by Ella F. Snowden and James L. Admire against Mathew Clowers and Charity Clowers. Judgment for plaintiffs, and defendants bring error. Reversed and remanded.

On July 11, 1903, Ella F. Snowden, defendant in error, plaintiff below, brought suit in the district court of Kingfisher county, Oklahoma Territory, against Mathew Clowers and Charity Clowers, plaintiffs in error, defendants below, and set forth in her petition, in substance, that, on December 20, 1902, defendants, Mathew Clowers and Charity Clowers made, executed, and delivered to James L. Admire their one certain promissory note for $387.25, payable 6 months after date, with interest thereon at 12 per cent. per annum from date; that afterwards said Admire sold and conveyed the same to plaintiff for value, and before maturity, without recourse; that she was, at that time, the owner and holder of the same. That there was due and owing plaintiff thereon the sum of $387.25, with interest, and $10 for an attorney's fee, as provided for in the face of the note. That to secure the payment of said note, on the same day, defendants made executed, and delivered to said Admire a mortgage on certain lands, describing them, in Kingfisher county, Okl. T., which was duly filed for record, and which, before the maturity of said note, was duly assigned to her by said Admire for value that she was, at that time, the owner and holder thereof, and prays that the same be foreclosed. Copies of the note and mortgage are filed with the complaint, and marked "Exhibits A and B." On August 5, 1903, defendants Mathew Clowers and Charity Clowers, for answer, in substance, pleaded: (1) Non est factum; (2) want of consideration; (3) that plaintiff is not the real owner of the mortgage sued on; that the assignment from Admire was merely colorable, and made for the purpose of cutting off their defense thereto; and that he was the real party in interest. The answer was also filed as a cross-petition, but it is unnecessary to further notice it, except to say that it was duly verified, and that Admire was made a party, and filed a general denial thereto, as did also the plaintiff. On December 5, 1905, there was a trial to a jury, which resulted in a verdict and judgment thereon for the plaintiff Ella F. Snowden, in the sum of $532.66, and costs, and a...