Denman v. Brennamen
Decision Date | 20 April 1915 |
Docket Number | 4077. |
Citation | 149 P. 1105,48 Okla. 566,1915 OK 239 |
Parties | DENMAN v. BRENNAMEN ET AL. |
Court | Oklahoma Supreme Court |
Rehearing Denied July 6, 1915.
Syllabus by the Court.
A promissory note, the body of which is in the usual, simple form, and signed, " --the first name being that of a corporation is not necessarily the independent obligation of the corporation, but is ambiguous in the sense that it was not error to admit parol evidence to show the intention of the parties was to obligate themselves for its payment.
A reply need not be filed when the answer does not really set up new matter, but rather evidential facts in the way of a denial to the plaintiff's petition.
A party to a lawsuit, who voluntarily remains away from the trial of his case until the jury has retired and before they return a verdict, cannot complain because the court declines to recall the jury on his appearance for the purpose of permitting him to testify. The court's action, being discretional, is never error, unless abused.
Commissioners' Opinion, Division No. 4. Error from District Court, Jefferson County; Frank M. Bailey, Judge.
Action by A. A. Brennamen and others against W. M. Denman and others. Judgment for plaintiffs, and defendant named brings error. Affirmed.
Refusal to permit the jury to be recalled on a party's appearance to testify held not an abuse of discretion, where such party had voluntarily remained away from the trial until the jury had retired.
This action was brought in the district court, Jefferson county by defendant in error Brennamen against W. M. Denman, plaintiff in error, J. A. Zackary, Roy Martin, J. S. McKnight, H. C. Cutler, and D. E. Ackerman, upon the following written instrument:
"$337.00. Waurika, Okla., Sept. 25, 1906.
One day after date we promise to pay to the order of A. A. Brennamen three hundred and thirty seven and no/100 dollars at the bank of Waurika, Waurika, Oklahoma, value received with interest at 10 per cent. per annum from date until paid.
Farmers' Union Stock Co.,
By W. M. Denman, Direct.
J. A. Zackary, Direct.
Roy Martin, Direct.
J. W. McKnight, Direct.
H. C. Cutler, Direct.
D. E. Ackerman, Pres."
Indorsed:
"January 25, '08, received on within note twenty-five dollars."
The petition alleges, in addition to the usual allegations, that defendants promised and agreed with plaintiff to be individually liable and bound, and that the note was signed with such understanding. On May 10, 1911, defendants Denman, Zackary, Martin, and McKnight filed a joint demurrer stating: First, the petition did not set up sufficient facts to constitute a cause of action; second, because the petition on its face shows that if plaintiff has a cause of action, same was against Farmers' Union Stock Company, and not against them; which on September 19, 1911, was heard, overruled, exception saved, and leave to answer. Default was entered against defendants Cutler and Ackerman for want of plea. Other defendants on November 28, 1911, filed joint answer verified by defendant Zackary, consisting of a general denial, and alleging that the note sued on was the debt of the "Farmers Union Stock Company," a corporation, and signed by them as agents and not in their individual capacity; that plaintiff in error knew their authority in the premises, and that the note was the debt of the corporation, and not the individuals, to which answer no reply was filed. The cause was tried December 7, 1911, to a jury. At the conclusion of the defendant in error's evidence the answering defendants entered a demurrer, which was sustained, except as to Denman. Some immaterial testimony was taken on behalf of Denman, after which his attorney stated that it was then 11 o'clock and his client (Denman) would arrive on the 11:40 a. m. train, and moved the court to recess until such time, which was denied and exception taken. Upon motion of the defendant in error, the court instructed a verdict against Denman and Ackerman, to which Denman excepted. It further appears that the court then gave written instructions, to which no exception appears to have been taken or saved, and after argument the jury retired; that soon thereafter attorney for Denman stated to the court that his client was then in court and had a good and valid defense to the action; that the jury was still deliberating, and moved the recall of the jury, to permit him to testify in his own behalf, which was denied and exception taken. The jury returned the verdict for defendant in error, and in due course motion for new trial was filed, heard, overruled, exception taken, and judgment rendered for defendant in error, from which Denman alone appeals and assigns as error the following:
"First. The court erred in overruling the demurrer to plaintiff's petition.
Second. In admitting evidence offered on the part of plaintiff and objected to by defendant.
Third. In the admission of evidence disputing the allegations of defendant's answer, when same had not been denied by any pleading on the part of the plaintiff.
Fourth. In refusing and ruling out competent evidence offered on the part of the defendants.
Fifth. In refusing to postpone the further hearing of the cause for 45 minutes and enable defendant Denman to testify.
Sixth. In peremptorily instructing the jury to return the verdict against Denman when there was evidence before the jury for which reasonable minds could have based a verdict in his favor.
Seventh. In refusing the request of the defendant Denman that the jury be recalled and he be permitted to testify in his own behalf, he being present in court long prior to the time that the verdict was rendered.
Eighth. In overruling the defendant's motion for new trial.
Ninth. Because the verdict and judgment is contrary to law and the evidence introduced in said cause."
Jones & Green, of Waurika, for plaintiff in error.
Bridges & Vertrees, of Waurika, for defendants in error.
WATTS, C. (after stating the facts as above).
I. Assignments 1, 2, 4, 6, 8, and 9 may be considered together as embracing but one question.
On the face of the note as herein set out, is it ambiguous in the sense that it was error to admit parol evidence to show that the intention of the parties was to obligate themselves to its payment? Upon this proposition we think the courts have discussed and differed in their views beyond all hope of immediate reconciliation, and if the Supreme Court of this state had not heretofore chosen the affirmative, we would find much difficulty in our alinement. Justice Dunn ( Wiers et al. v. Treese, 27 Okl. 774, 117 P. 182) very carefully considered the question, involving a note equally as difficult as the one under consideration, to wit:
We call especial attention to the reading and signing of the note last referred to:
We quote Judge Dunn as follows:
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