Edwards v. Negim & Co.

• Court: Oklahoma Supreme Court
• Writing for the Court: Opinion by MAXEY, C.
• Citation: Edwards v. Negim & Co., 105 Okla. 7, 231 P. 488, 1924 OK 704 (Okla. 1924)
• Decision Date: 16 September 1924
• Docket Number: Case Number: 13769
• Parties: EDWARDS et al. v. NEGIM & CO.

1924 OK 704

231 P. 488

105 Okla. 7

EDWARDS et al. v. NEGIM & CO.

Case Number: 13769

Supreme Court of Oklahoma

Decided: September 16, 1924

Commissioners' Opinion, Division No. 1.

Error from District Court, Ottawa County; S. C. Fullerton, Judge.

Action by Negim & Company against J. P. Edwards and Mary Morgan. Judgment for plaintiff, and defendants appeal. Affirmed.

This action was commenced on February 18, 1921, by Negim & Company, a corporation, and the defendant in error herein, against J. P. Edwards and Mary Morgan, plaintiffs in error herein, in the district court of Ottawa county, Okla., for the purpose of recovering the sum of $ 900 for rent on a certain building in Picher, Okla., and on the same day sued out an attachment and caused the same to be thereafter levied on the property of J. P. Edwards, one of the defendants. Prior to the levy of the attachment on said property, Negim and Company, found there were two chattel mortgages on the property it desired to levy on, said mortgages being held at the time by the Bank of Picher, Okla., and they proceeded under the statute, sections 4040-4041 of the Revised Laws of Oklahoma, 1910, and paid off said mortgages to the Bank of Picher, and took an assignment of said notes and mortgages, and then had the attachment levied on same. The parties will be referred to as they appeared in the trial court. Thereafter, on March 17, 1921, J. P. Edwards filed a motion to dissolve the attachment, which motion was on April 2, 1921, sustained by the court and the attachment dissolved. Thereafter, on the 12th day of March, 1921, the plaintiff in the trial court filed a supplemental petition in said cause alleging, in substance, that the plaintiff found two certain outstanding mortgages, executed by defendants J. P. Edwards and Mary Morgan to the Bank of Picher and L. M. Poynter, that plaintiff considered it necessary to purchase and take assignments of said mortgages and notes in order to levy said attachment on the property covered by said mortgages, which assignments of said notes and mortgages were taken prior to the levy of said attachment order, and that they did purchase said notes and mortgages from the holder thereof, and took assignments of same, and in said supplemental petition prayed that by virtue of said notes and mortgages and assignments thereof it be declared to have a lien on the property covered thereby and for the foreclosure of such lien. On March 17, 1921, the defendants J. P. Edwards and Mary Morgan each filed a separate demurrer to plaintiff's petition, which demurrers were, on April 2, 1921, overruled. On August 25, 1921, the defendants filed a separate answer denying generally the allegations in plaintiff's petition, and allege that prior to the levy of the attachment order on said property, the plaintiff, Negim & Company, purchased and had assigned to it the two notes held by the Bank of Picher, and that by reason of the purchase of said notes and mortgages and the levy of attachment on said property, that the plaintiff waived and discharged the lien of said mortgages on the property levied on under the writ of attachment. Defendant then set up an agreement he claimed was entered into between the plaintiff and himself at the time he rented the rooming house, described in the pleadings, whereby the plaintiff was to make certain improvements in the way of plumbing and otherwise, and alleges that plaintiff had never made said improvements and that he, the defendant Edwards, had been damaged in the sum of $ 1,200. He further alleged that he contracted to sell his lease on said building for $ 3,200, but that because of the failure of plaintiff to make the improvements that it agreed to, the purchaser refused to take the property, to his damage in the sum of $ 1,100. Thereafter the plaintiff filed a motion to strike the two items in the cross-petition of Edwards, and said motion was sustained. Plaintiff filed a reply and denied generally the allegations of the answer and cross-petition of the defendant, Edwards. Thereafter, Edwards filed an amended cross-petition which was substantially the same as the original cross-petition except as to the paragraph which had been stricken out by the court. The new matter set up in the amended cross-petition was, in substance, that prior to the purchase by J. P. Edwards of the Mary Morgan lease, it was orally agreed between the plaintiff and Edwards that if Edwards would purchase and take an assignment of the lease of Mary Morgan, the plaintiff, in addition to the rooms covered by said lease, was to rent to him a set of rooms, known as the Joplin rooms, located in the same building and permit the cross-petitioner to sell his leasehold interest and right in all of said property, thereby making it a commercial lease; that such transaction constituted a new consideration, and when the lease was purchased by Edwards became an executed oral agreement, even though the plaintiff thereafter failed to perform its part of said agreement.

Then the defendant, Mary Morgan, filed a general denial to plaintiff's petition, and the case was thereafter called for trial, and at the beginning of the trial, the defendants objected to the introduction of any evidence under the original petition or supplemental petition, which objection was overruled by the court. Defendants also objected to the introduction of the notes and mortgages which had been purchased by the plaintiff prior to the levy of the attachment on the ground that by the purchase of said notes and mortgages by the plaintiff the mortgage lien was extinguished by levying on the property under the writ of attachment. This objection was overruled.

At the trial, the defendant Edwards offered evidence tending to show that before he purchased the Mary Morgan lease he made an oral contract with the plaintiff wherein it was agreed that if Edwards would purchase a lease from Mary Morgan and move in to and occupy their rooms covered by said lease, the plaintiff would lease to Edwards a certain set of rooms adjoining the rooms mentioned in the Morgan lease, and that in pursuance of such agreement Edwards purchased or arranged for the furniture with which to furnish said Joplin rooms, and did purchase and take an assignment of the Mary Morgan lease, and did move into and occupy the rooms covered by such lease, and that said Edwards would not have purchased the Mary Morgan lease, but for the fact and understanding that he was to have the Joplin rooms, and plumbing and other improvements heretofore mentioned. The court first admitted a portion of this testimony and thereafter on motion of plaintiff excluded the whole of such testimony, and the defendant excepted. The defendant then made an offer to prove all of the matters that he had set up in his cross-petition, but said offer was denied by the court, and on objection of the plaintiff the court struck out and refused to let the jury consider any of the evidence offered by defendant. At the close of the testimony, the court gave, among others, instruction No. 3 which instruction is as follows:

"You are instructed that under the evidence in this case the plaintiff is entitled to recover of and from the defendants, J. P. Edwards and Mary Morgan upon his first cause of action, that being for rentals due, the sum of $ 1,050, with interest thereon at the rate of 6 per cent per annum from the 1st of September, 1921; and that the plaintiff is further entitled to recover from the defendant, J. P. Edwards, the sum of $ 875 upon the promissory note executed by Edwards to the Bank of Picher, with interest thereon at the rate of 10 per cent. from July 19, 1920, together with the further sum of $ 87.50 as attorney fee as provided by the terms of that note; and that the plaintiff is also entitled to recover against the defendants Mary Morgan and J. P. Edwards the further sum of $ 125 upon the balance due upon the $ 750 note executed by them to L. M. Poynter, together with interest on $ 125 at the rate of 10 per cent per annum from August 19, 1919, together with the further sum of $ 12.50 as attorneys fees upon that note, Gentlemen, the...