Conqueror Trust Co. v. Simmon
| Citation | 162 P. 1098,62 Okla. 252,1917 OK 103 |
| Decision Date | 23 January 1917 |
| Docket Number | Case Number: 7639 |
| Parties | CONQUEROR TRUST CO. v. SIMMON. |
| Court | Supreme Court of Oklahoma |
¶0 1. Lotteries--Sale of Merchandise--"Lottery." The sale of merchandise under a contract that provides a scheme or plan to stimulate trade, where tickets are given with purchases of goods at regular prices and the distribution of prizes are not determined by lot, but are awarded to the persons holding the greatest number of such tickets representing the greater value of such purchases in the order of such holdings for the several prizes so given, is not a lottery, and is not illegal, unlawful, or void as against any statute or public policy of our state.
2. Alteration of Instruments--Negotiable Instruments Law--"Material Alteration"--Detachment from Contract. Merely detaching a negotiable promissory note from a contract to which it is attached by perforation for the purpose of being detached when such detachment does not make any change or addition which alters the effect of the instrument in any respect, is not a "material alteration" under the negotiable instruments act of this state.
3. Bills and Notes--Holder for Value--Alteration. When an instrument has been materially altered and is in the hands of a holder in due course, not a party to the alteration, he may enforce payment thereof according to its original tenor.
4. Bills and Notes--Action by Holder in Due Course--Failure of Consideration--Defense. In an action upon four negotiable promissory notes by a holder in due course the maker of the note offered in evidence a written contract between him and the payee, executed as a consideration for the notes, and to show that the payee had violated the contract, and that the consideration of the notes had failed after their negotiation and after the maturity and payment by him of the two first notes of the series of six, and before the maturity and payment of the remaining four sued on; held, that said evidence was improperly admitted and constituted no defense to the action, in the absence of any showing, or attempt to show, that the holder in due course had notice of such contract and of the failure of the consideration at or before the time he purchased said notes.
Geo. C. Beidleman, Fred W. Kelsey, and E. F. Cameron, for plaintiff in error.
McCrory & Johns, for defendant in error.
¶1 The petition of the plaintiff in this cause in the court below, together with the exhibits thereto attached, speak for themselves, and are as follows:
¶2 M. Simmon, made, executed, and delivered to the Southwestern Sales Company his promissory note in writing of that date, whereby he promised to pay to the said Southwestern Sales Company, or order, four months after date thereof, the sum of $ 50, whereby defendant became liable and bound to pay said sum therein specified. "(2) Plaintiff further states that on the said 18th day of September, 1912, at Morris, Okla., the defendant, J. M. Simmon, made, executed, and delivered to the Southwestern Sales Company his second promissory note in writing of that date, whereby he promised to pay to the Southwestern Sales Company, or order, five months after date thereof, the further sum of $ 50, whereby he became liable and bound to pay said sum therein specified. "(3) Plaintiff further states that on the said l8th day of September, 1912, at Morris, Okla., the said defendant, J. M. Simmon, made, executed, and delivered to the Southwestern Sales Company, his third promissory note in writing of that date, whereby he promised to pay to said Southwestern Sales Company, or order, six months after date thereof, the further sum of $ 75, whereby he became liable and bound to pay said sum therein specified. "(4) Plaintiff further states that on the said 18th day of September, 1912, at Morris, Okla., the defendant, J. M. Simmon, made, executed, and delivered to the Southwestern Sales Company his fourth promissory note in writing of that date, whereby he promised to pay to said Southwestern Sales Company, or order, seven months after date thereof, the further sum of $ 75, whereby he became liable and bound to pay said sum therein specified. "(5) That after the execution and delivery of said promissory notes, and before the maturity of the same, and for a good and valuable consideration and in due course of banking business, said Southwestern Sales Company indorsed said notes herein sued on in writing, and delivered and sold the same to this plaintiff, who thereupon became and now is the bona fide holder and owner thereof without notice of any defense thereto. That no part of said above mentioned notes have been paid, and the same are wholly due. "(6) Plaintiff further states that there is due and owing on said notes to this plaintiff the sum of $ 250, with interest thereon at the rate of 6 per cent. per annum from the date of the maturity of each of said notes; that demand for payment has been made on plaintiff, and plaintiff refuses to pay this debt. "Copies of said notes and indorsements thereon are attached hereto and filed herewith as a part hereof, marked Exhibits A, B, C, and D. "Wherefore plaintiff prays judgment against said defendant, J. M. Simmons, for the sum of $ 250, with interest thereon at the rate of 6 per cent. per annum from the date of the maturity of each of said notes, and for all costs of this action, and for all proper relief.
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