First Nat. Bank of Tecumseh v. Harkey

• Decision Date: 10 October 1916
• Docket Number: Case Number: 7142
• Citation: 163 P. 273,63 Okla. 163,1916 OK 859
• Parties: FIRST NAT. BANK OF TECUMSEH v. HARKEY et al.
• Court: Oklahoma Supreme Court

1916 OK 859

163 P. 273

63 Okla. 163

FIRST NAT. BANK OF TECUMSEH v. HARKEY et al.

Case Number: 7142

Supreme Court of Oklahoma

Decided: October 10, 1916

Syllabus

¶0 1. Pleading-- Objection to Introduction of Evidence.

Where the sufficiency of a petition is challenged solely by an objection to the introduction of evidence thereunder, such objection, not being favored by the courts, should generally be overruled, unless there is a total failure to allege some matters essential to the relief sought, and should seldom, if ever, be sustained when the allegations are simply incomplete, indefinite, or conclusions of law.

2. Bills and Notes--Validity--Consideration.

A note given in settlement of a disputed claim, which might have become the subject of litigation, fairly made, in good faith, without mistake, undue influence, misrepresentation, or fraud, is valid and based upon sufficient consideration.

Error from District Court, Pottawatomie County; Chas. B. Wilson, Jr., Judge.

Action by the First National Bank of Tecumseh against S. L. Harkey and others Judgment for defendants, and plaintiff brings error. Reversed, and cause remanded.

T. G. Cutlip, for plaintiff in error.

Baldwin & Carlton, for defendants in error.

HARDY, J.

¶1 The parties occupy the same position here which they occupied in the trial court. Plaintiff brought suit against defendants upon a promissory note, dated January 3, 1913, due October 1, 1913, for the sum of $ 141.15, with interest at 10 per cent. until paid. Defendant Harkey filed separate answer, consisting of general denial, and admitting the corporate capacity of plaintiff, and the execution of the note sued on, and, further, that at the time of the execution thereof he was indebted to plaintiff in the sum of $ 10.80, and no more, which sum had been paid, with legal interest thereon, and that at the date of the execution of said note same was executed for $ 130.35 more than defendant was indebted to plaintiff. Defendants Wells and Wilcox filed joint answer, in which they admitted the execution of the note by them as sureties, and further pleaded that no consideration passed from plaintiff to them, and adopted in substance the allegations of the separate answer of defendant Harkey. Reply was filed, and trial had to a jury, which returned a verdict for defendants, and plaintiff appeals.

¶2 There was no demurrer filed to the answer of defendant Harkey, nor motion to make same more specific and certain, nor were any other objections made thereto, except that after the jury had been impaneled, and the defendant offered testimony in support of the allegations thereof, plaintiff then objected to the introduction of any testimony thereunder, for the reason that same did not state facts sufficient to constitute a cause of action against plaintiff. This objection was overruled, and exceptions saved, and error assigned thereon.

¶3 An objection of this character made at the time and in the manner this was made, is not looked upon with favor by the courts, unless there is a total failure to allege some matter essential to the relief sought, and should seldom, if ever, be sustained, when the allegations are simply incomplete, indefinite, or conclusions of law, and the pleading will be liberally construed, if necessary, in order to sustain the same. Hogan v. Bailey, 27 Okla. 15, 110 P. 890; M., O. & G. R. Co. v. McClellan, 35 Okla. 609, 130 P. 916; Abbott v. Dingus, 44 Okla. 567, 145 P. 365; McConnell v. Davis, 46 Okla. 201, 148 P. 687. The answer in this case was not a model of pleading, but contained the essential elements of the defense which defendants sought to plead. Had plaintiff filed motion to make more specific, or filed demurrer thereto, it is possible the court would have sustained the same, with leave to amend; but, this not having been done, the objection now urged cannot be sustained, unless there is a total failure in some material respect to allege facts that were essential to entitle the defendant to maintain the defense therein defectively set up. It was not error to overrule the objection.

¶4 The defendant Harkey had previously been indebted to plaintiff upon a note in the sum of $ 378, secured by a chattel mortgage, upon which note the other defendants were sureties, and, after certain payments were made thereon, the note in suit was executed as a renewal of the...