Conwill v. Eldridge

• Decision Date: 10 December 1918
• Docket Number: Case Number: 5890
• Citation: 71 Okla. 223,177 P. 79,1918 OK 705
• Parties: CONWILL v. ELDRIDGE et al.
• Court: Oklahoma Supreme Court

1918 OK 705

177 P. 79

71 Okla. 223

CONWILL v. ELDRIDGE et al.

Case Number: 5890

Supreme Court of Oklahoma

Decided: December 10, 1918

Syllabus

¶0 1. Statutes--Adoption from Another State --Construction by Courts of Other State --Presumption.

Where a statute taken from another state has at the time of its adoption been construed by the highest court of the state from which it was taken, it is presumed that the legislative body which adopts such statute adopted it as construed by such highest court.

2. Pleading--Answer--Inconsistent Defenses--Admission.

Although, under the statute, a defendant may set forth in his answer as many grounds of defense as he may have, whether they be such as have been heretofore denominated legal, or equitable, or both yet, where he makes repugnant or inconsistent defenses, a denial of a fact alleged in the complaint in one portion of the answer is modified by an admission, expressly or impliedly made, of such fact in another portion of the answer, and such admission will be taken to be true.

3. Witnesses -- Incompetency -- Transactions with Decedent--Waiver.

The incompetency of a witness to testify concerning transactions or communications had with a person since deceased is waived by the objecting party eliciting on cross-examination testimony relating to such transactions or communications, or by showing on cross-examination that such transactions or communications occurred.

4. Trial--Directed Verdict--Evidence.

Where, under the pleadings, the plaintiff is entitled to recover unless certain affirmative defenses pleaded by the defendant are sustained, and where no evidence is produced reasonably tending to support such defenses, a verdict should be directed in favor of the plaintiff.

5. Appeal and Error--Verdict--Insufficiency of Evidence.

Where it is apparent from the record that the evidence does not reasonably sustain the verdict of the jury, this court will wet such verdict aside and grant a new trial.

Error from District Court, Texas County; R. H. Loofbourrow, Judge.

Suit by J. D. Conwill against Marion Eldridge and Benjamin F. Eldridge, administrators of the estate of W. H. Eldridge, deceased. Verdict for defendants, motion for new trial overruled, and plaintiff brings error. Reversed, and cause remanded, with instructions to grant a new trial.

Hardy, J., dissenting.

John L. Gleason, M. M. Gibbens, and Cottingham & Hayes, for plaintiff n error.

Everest, Vaught & Brewer and S. A. Horton, for defendants in error.

TISINGER, J.

¶1 J. D. Conwill brought suit in the district court of Texas county on August 17, 1909, against Wm. H. Eldridge, seeking to recover the sum of $ 1,117.74, the amount of the principal and interest of two promissory notes alleged to have been made and executed to him by the defendant. This suit was defended by Marion Eldridge as guardian for the defendant Wm. H. Eldridge, and resulted in a verdict and judgment in favor of the defendant. An appeal was taken to this court. Pending the appeal, the defendant Wm. H. Eldridge died. On motion of the plaintiff, the cause was revived in this court against Marion Eldridge and Benjamin F. Eldridge, as administrators of the estate of Wm. H. Eldridge, deceased, and thereafter on March 11, 1913, this court rendered judgment reversing the judgment of the district court of Texas county and remanding the cause for a new trial. Conwill v. Eldridge, 35 Okla. 537, 130 P. 912.

¶2 Plaintiff then amended his original petition by alleging the death of the defendant Wm. H. Eldridge and the appointment and qualification of the defendants Marion Eldridge and Benjamin F. Eldridge as administrators of his estate. These defendants filed their amended answer, and the defenses alleged therein necessary to a determination of the issues involved on this appeal were as follows:

1. A general denial of the allegations contained in plaintiff's petition.

2. A denial that the notes sued on were executed by the deceased, Wm. H. Eldridge.

3. The allegation that, if said notes were executed by Wm. H. Eldridge, they were without consideration and void.

4. The allegation that, if the notes were executed by Wm. H. Eldridge, they have been paid in full.

5. That the consideration of the promissory notes sued on, if any were executed, was the purchase price of one jack, and that plaintiff secured the execution of the notes by false and fraudulent representations that the jack for which they were executed was sound and in every way and manner suitable for breeding purposes, when in truth and in fact he was entirely and wholly worthless for breeding purposes and without value, all of which facts were known to the plaintiff at the time of his making said false and fraudulent representations and were unknown to Wm. H. Eldridge; that said representations were made for the purpose of deceiving and defrauding said Wm. H. Eldridge, and he did rely upon the same and was thereby deceived and defrauded; that plaintiff was enabled to accomplish his fraud by reason of the senility and weakness fo the said Wm. H. Eldridge, who at the time the notes sued on in this case were executed was mentally incompetent and incapable of entering into a valid contract; that the jack has died since the execution of the promissory notes, without fault of the said Wm. H. Eldridge or defendants, and for that reason they are unable to offer to return him to plaintiff.

6. By alleging that the Percheron horse described in the notes sued on did not form any part of the consideration for which said notes were given, but that said horse was paid for by the defendant Wm. H. Eldridge in full prior to the time of the execution of said notes.

¶3 The second trial of the case resulted in a general verdict for the defendants. Plaintiff filed his motion for new trial, which was overruled by the court, and he brings the case here by petition in error and case-made.

¶4 When the defendants presented their amended answer, the court permitted it to be filed, but struck therefrom the second ground of defense, which denied the execution of the notes sued on. And, when plaintiff undertook to make out his case, the court relieved him of the burden of proving the execution of the notes. Clearly, the action of the court in so doing was authorized by defendants' answer, for it, in effect, admitted their execution. It will be observed that, in the separate defense to the effect that the notes were without consideration and void, that they had been paid, and that they were obtained by fraud, are all based on one hypothesis, "if they were executed." It will also be observed that, in the separate defense, that the notes were obtained by fraud, the defendants alleged that plaintiff secured the execution and delivery of the notes by certain false and fraudulent representations therein set out, and they further alleged that the jack, "which was the consideration of the notes," had died "since their execution." The defendants further plead, in the eleventh separate paragraph of their answer, without any qualification, that the Percheron horse described in the notes did not form "any part of the consideration for which the notes were given," but that said horse was paid for by the defendant Wm. H. Eldridge, in full, "prior to the time of the execution of said notes."

¶5 These admissions of the execution of the notes were sufficient to justify the court in relieving plaintiff of the burden of proving it. Rightly interpreted, the allegations of the answer constituted in several instances an admission of the execution of the notes, and an attempt to avoid its effect by averments of fraud in their procurement, of want of consideration, and of payment. The answer of the defendants, taken as a whole, seems to be in the nature of a plea of confession and avoidance. To all practical intents and purposes, it admits that plaintiff had a cause of action, but avers that it had been discharged by some subsequent or collateral matter affirmatively alleged therein.

¶6 Section 4745, Revised Laws 1910, which permits a defendant to set forth, in his answer, as many grounds of defense as he may have, whether they be such as have been theretofore denominated legal, or equitable, or both, was a part of the Code of Civil Procedure of the State of Kansas which was adopted as the Code of Civil Procedure of the Territory of Oklahoma by the Legislative Assembly of the Territory in 1893. Statutes 1893, § 3972. It took effect and became of force after its publication in the Statute Book, which, according to the certificate of the Secretary of the Territory, was on August 14, 1893. This Code of Civil Procedure was made a part of the laws of the state of Kansas when the territorial acts were revised in 1868. Prior to its adoption as the Code of Civil Procedure of the Territory of Oklahoma, it had been construed by the Supreme Court of the State of Kansas, and it is therefore presumed that the territorial Legislature adopted the construction which had been placed on it by the highest court of that state. National Live Stock Com. Co. v. Taliaferro, 20 Okla. 177, 93 P. 983; Western Terra Cotta Co. v. City of Shawnee, 39 Okla. 716, 136 P. 595; St. L. & S. F. R. Co. v. Bruner, 52 Okla. 349, 152 P. 1103; Amsden v. Johnson, 74 Okla. 295, 158 P. 1148.

¶7 The earliest reported case we have been able to find is that of Wiley v. Keokuk, 6 Kan. 94, rendered in 1870. The third paragraph of the syllabus roads:

"Whatever is admitted in a special defense operates, so far, as a modification of a 'general denial,' and is to be taken as true without other proof."

¶8 The rule here announced was followed in the case of Butler v. Kaulback (1871) 8 Kan. 668, in which the court said:

"It is pretty well settled that facts admitted by the pleadings cannot be disputed by the evidence, but must be taken as true for the purpose of the action; and in the nature of things a party cannot in fact have inconsistent defenses. It is impossible that a thing may be true and untrue at

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