Doyle v. Doyle

• Decision Date: 04 April 1939
• Docket Number: Case Number: 28646
• Citation: 89 P.2d 305,1939 OK 182,184 Okla. 572
• Parties: DOYLE, Adm'r. v. DOYLE et al.
• Court: Oklahoma Supreme Court

1939 OK 182

89 P.2d 305

184 Okla. 572

DOYLE, Adm'r. v. DOYLE et al.

Case Number: 28646

Supreme Court of Oklahoma

Decided: April 4, 1939

Syllabus

¶0 1. ACCOUNT STATED--Plaintiff not Entitled to Judgment on Pleadings Where Judgment Sought Upon Note and not Upon Account Stated.

To recover on an account stated, plaintiff must declare upon the account stated, as such, and where the petition states a cause of action on a note, and judgment is sought upon the note and not upon the account stated, plaintiff is not entitled to judgment on the pleadings as upon an account stated.

2. WITNESSES--Incompetency to Testify as to Transactions With Decedent Where Administrator Is Adverse Party.

Where one of the parties to an action is the administrator of the estate of a deceased person, the adverse party may not testify in his own behalf as to any transaction or communication had personally with such deceased person, and where there are two adverse parties affected by the same transaction or communication, both are disqualified under the provisions of section 271, O. S. 1931, and neither may testify concerning a communication had by the other in his presence with such deceased person.

Appeal from District Court, Seminole County; H. H. Edwards, Judge.

Action by Bill Doyle, administrator of estate of Sidney Doyle, against J. A. Doyle and others. From adverse judgment, plaintiff appeals. Reversed and remanded.

Spiers & Bodovitz and Pryor & Wallace, for plaintiff in error.

W. A. Billingsley, C. L. Hill, and E. W. Whitney, for defendants in error.

RILEY, J.

¶1 This is an appeal, by plaintiff, from an adverse judgment in an action on a promissory note. and for foreclosure of a mortgage given by one of the makers to secure the same.

¶2 Plaintiff, Bill Doyle. is the administrator of the estate of Sidney A. Doyle, deceased.

¶3 The note sued upon is dated February 4, 1930, and is payable to the order of S. A. Doyle, the same person as Sidney A. Doyle. The note is due 90 days after date and signed by E. W. Whitney. J. A. Doyle, and W. N. Stokes. Payments were endorsed thereon aggregating the sum of $1,050. The last credit is of the date of January 24, 1934.

¶4 Plaintiff alleges the execution of the note in the usual form, and then pleads:

"Plaintiff further alleges and states that certain payments have been made on said note, as disclosed by the endorsements thereon; and that said defendant, J. A. Doyle, and the plaintiff herein agreed and settled the balance due on said note as being the sum of two thousand, five hundred ($2,500) dollars. That said settlement was made on or about June 13, 1936, and became due and liquidated as to amount, and was settled and agreed upon as being the amount due, taking into consideration all of the transactions and credits heretofore had between said J. A. Doyle and the payee of said note. That there is due on said note to this plaintiff the sum of two thousand five hundred ($2,500) dollars, together with interest thereon at the rate of eight per cent. (8%) per annum from June 13, 1936, until paid. That said note provided for an attorneys' fee of ten per cent. (10%) additional; and that, by reason thereof ten per cent. (10%) of the total amount due is to be included as an attorney's fee.

"Plaintiff further alleges and states that due demand has been made for the payment of said note; that same is past due and payable: and that said defendants. and each of them have failed and refused and still fail and refuse to pay same, or any part thereof."

¶5 The second cause of action alleges in substance that on November 25, 1930, J. A. Doyle and Mattie Doyle, husband and wife, for the purpose of securing said note, executed and delivered a mortgage covering lots 10 to 15, inclusive, in block 64, of the original townsite of Wewoka. A copy of the mortgage is attached to the petition, and foreclosure thereof is requested.

¶6 Defendant E. W. Whitney answered by general denial, admitting the execution of the note and alleging; "But states that said note has been paid in full and this defendant has been discharged."

¶7 Defendant J. A. Doyle answered, admitting the execution of the note and mortgage, and further alleging:

"Answering further, this defendant states that on or about the ---- day of -----, 1935, that S. A. Doyle, deceased, and this defendant had an accounting and settlement; that the business of which they had an accounting on said day between this defendant and said deceased bad extended over a period of several years; that the defendant owed the deceased, and the deceased owed the defendant; that the deceased and this defendant were brothers. The deceased was several years older than the defendant; and the deceased and this defendant had many business ventures; and had always worked and co-operated with each other for each other's benefit; and never had any trouble in any manner, or any dispute; that on the day last above mentioned said deceased and this defendant went over all their business dealings since the last settlement which was perhaps 10 years prior thereto; and the deceased then agreed with the defendant, after balancing the accounts, that there was no difference between them; and the accounts were settled at that time: and the note described in plaintiff's petition, which the mortgage secures. alleged in plaintiff's petition, was discussed and taken into consideration in said agreement: and this defendant then and there was discharged from any further liability because of said note and mortgage.

"Payment of said note was made by balancing and canceling the indebtedness from this defendant to the plaintiff and the indebtedness from the plaintiff to this defendant, in Wewoka, Okla., on or about the --day of -----, 1935, the exact date being to this defendant at this time unknown."

¶8 Defendant Mattie J. Doyle answered, denying under oath the execution of the mortgage by her, and further alleging that the premises covered by the mortgage was the homestead of Mattie J. Doyle and J. A. Doyle.

¶9 Plaintiff moved for judgment on the pleadings against defendant J. A. Doyle. The motion was denied, and after reply to the several answers, the...