First State Bank of Mannsville v. Howell
| Decision Date | 06 August 1913 |
| Citation | 137 P. 657,41 Okla. 216,1913 OK 504 |
| Parties | FIRST STATE BANK OF MANNSVILLE v. HOWELL ET AL. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
A motion for judgment on the pleadings was properly overruled in an action in replevin, where the answer contained several defenses in addition to a general denial. The general denial raised an issue of fact, and did not render the pleading inconsistent, no matter what the other defenses may have been.
Ordinarily a motion for judgment on the pleadings is proper where the answer admits, or leaves wholly undenied, the allegations of the petition; but in replevin a general denial puts in issue every fact pleaded, and in such case a motion for judgment on the pleadings should be overruled.
Loss of profits, or damage to a crop, if within the contemplation of the parties at the time a contract is made, and was such a loss or damage as flowed directly or proximately from the breach of such contract, and is capable of accurate measurement or estimate, is recoverable in an action for damages for the breach of such contract.
In an action in replevin by the assignee of a nonnegotiable note and a chattel mortgage against the mortgagor to foreclose the chattel mortgage, it is competent to prove failure of consideration and damages caused by the fault of the original payee; such evidence is permissible only to defeat the assignee's right of possession, and not for the purpose of recovering damages from him.
The measure of damages for the wrongful detention of a team of work mules is the usable value thereof during the time they were wrongfully detained.
Commissioners' Opinion, Division No. 1. Error from County Court, Marshall County; J. W. Falkner, Judge.
Action in replevin by the First State Bank of Mannsville against J L. Howell and others to recover possession of a team of mules for the purpose of foreclosing a chattel mortgage thereon. Judgment for defendants, and plaintiff brings error. Affirmed.
E. D. Slough, of Ardmore, for plaintiff in error.
Chas. A. Coakley, F. E. Kennamer, E. S. Hurt, and Geo. S. March, all of Madill, for defendants in error.
On December 15, 1908, one J. B. Wall, a merchant, sold to J. L. Howell two mules for $275, said sum to be paid October 1, 1909. On the same day the said J. L. Howell executed and delivered to the said J. B. Wall two promissory notes (secured by chattel mortgage on the said mules and other property), one in the sum of $275, the other in the sum of $219.93, which said notes were also signed by Chas. Lewis, as surety. Wall, the merchant, was indebted to plaintiff in error in the sum of $2,400 in the month of December, 1908, and shortly after the execution of the notes by Howell, as above set out, he indorsed and delivered to the said plaintiff in error said notes as collateral security for the payment of his indebtedness to the bank. In January thereafter Wall was adjudged a bankrupt. It may be fairly inferred, and is in fact alleged by the plaintiff in error, that the mules were charged on the books of Wall, the merchant, in the sum of $275, together with merchandise and credit given for the notes, and that at the time the last item was furnished by Wall to Howell the latter was entitled to a credit of $49.50; or, in other words, Howell had items charged on Wall's books sufficient to cover both notes, less the sum of $49.50. At the time of the trial Wall and his bookkeeper, J. D. Tanner, were deceased. The defendant Howell answered plaintiff's petition by general denial, and, in addition, admitted the execution of the notes and mortgage, but denied that plaintiff was the owner, and entitled to maintain the action. He also alleged that the price of the mules was $200 only, and that the excess, to wit, $75, as shown by the note, was usurious interest; that by the wrongful taking of the property by plaintiff he was damaged in the sum of $250, and that by breach of warranty as to the age of the mules he was damaged in the sum of $80. He also alleged that he had a contract with Wall to furnish supplies for the year 1909, and that by reason of Wall's failure to furnish such supplies he was damaged by having to work away from home, and out of his crop, for two months, at $1 a day, when his team at work in the crop would have been worth $3 a day, and, further, that he was prevented from planting his crop in time by reason of such failure to furnish supplies, and that therefore his crop was late, and was damaged by drouth in the sum of $250. Plaintiff demurred generally to the answer, and especially to paragraphs 4 and 7; the first being with reference to usurious interest, and the latter with reference to damages occasioned by the failure to furnish supplies. The court sustained the demurrer to paragraph 7, but later sustained a motion to set aside the demurrer, and permitted said paragraph to stand. Plaintiff filed a motion for judgment on the pleadings, which was overruled. The cause was tried to a jury February 7, 1911, and a verdict was returned in favor of the defendant for the return of the mules or their value in the sum of $100 each, and for $100 damages for the wrongful detention of the same. Motion for a new trial was filed, considered, and overruled, and judgment was entered on the verdict, and plaintiff brings this appeal to reverse said judgment, and assigns as error: (1) The court erred in not rendering judgment for the plaintiff on the pleadings. (2) The court erred in setting aside the order sustaining a demurrer to paragraph 7 of defendants' answer. (3) The court erred in overruling motion of plaintiff for a new trial.
Judgment on the pleadings is a permissible practice in the courts of this jurisdiction when the state of the pleadings warrant such disposition of the case. The case in hand being one in replevin, the gist of the action is the wrongful detention of the property. Defendants answered by general denial, and, in addition, pleaded affirmative defenses. In the latter they admit the execution and delivery of the notes and mortgages, default in payment of which is made the basis of plaintiff's claim to the right of possession. At any event it was incumbent on plaintiff, before it could recover, to establish its right of possession. Even though the special defenses set up in the answer should fail, yet the defendants, under the general denial, had a right to defeat plaintiff's claim by showing right of possession in some third party. Hence such an answer, containing different defenses, is not an inconsistent pleading in replevin, and, where an issue of fact is raised, as it was in this case, by the general denial, it is not error for the trial court to overrule a motion for judgment on the pleading. Ordinarily a motion for judgment on the pleading is proper where the answer admits, or leaves wholly undenied, the material allegations of the petition; but in this case no such condition exists. It might in some cases be proper to award judgment on the pleadings where the answer does not deny all the facts alleged, but denies legal conclusions only; but we are again, in this case, met with the principle that a general denial in replevin puts in issue every fact pleaded in the petition. 11 Ency. P. & P. 1031. This being true, there was no error in the action of the trial court in overruling the motion for judgment on the pleadings as interposed by plaintiff. Thomas v. Ray, 48 Colo. 423, 110 P. 77.
It is next contended that the court erred in refusing to sustain plaintiff's demurrer to the seventh paragraph of defendants' answer. This paragraph in substance charged that at the time defendant executed the notes and mortgage in controversy the said Wall agreed to furnish Howell such supplies, out of his store, as would enable him to make a crop during the year 1909; that he failed and refused to do so, and, on account of such failure, Howell was compelled to work out for $1 per day, when he should have been in his crop, and that the services of himself and team in his crop during such time was worth $3 per day; that, on account of the fact that his team and other personal property was mortgaged to Wall, he was prevented from obtaining credit elsewhere, all of which was known to Wall at the time the notes and mortgage were executed; that, as a direct and proximate result of such failure and refusal on Wall's part to comply with the terms of his said agreement, and furnish Howell the supplies necessary to enable him to plant and care for his crop, he was compelled to and did neglect planting it for two months, and the same was damaged and his profits thereon reduced thereby in the sum of $250. The notes were nonnegotiable, and any defense Howell may have had as against Wall would be available to him as against plaintiff. No reply was filed by the bank to the affirmative matter set up in the answer, nor was there any motion to strike the same; but a demurrer was interposed, which at first was sustained, but later overruled,...
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