Futoransky v. Pope

• Decision Date: 16 May 1916
• Docket Number: 7329.
• Citation: Futoransky v. Pope, 57 Okla. 755, 157 P. 905, 1916 OK 542 (Okla. 1916)
• Parties: FUTORANSKY v. POPE.
• Court: Oklahoma Supreme Court

157 P. 905

57 Okla. 755, 1916 OK 542

FUTORANSKY v. POPE.

No. 7329.

Supreme Court of Oklahoma

May 16, 1916

Syllabus by the Court.

Where a written contract is plain and unambiguous, oral evidence is not admissible to explain its terms or give them a different meaning from that apparent upon the face of the contract.

The verdict of a jury upon questions of fact, fairly submitted to them in an action at law upon sufficient evidence to sustain the verdict, will not be disturbed upon appeal.

Defendant bought a stock of goods in bulk and required a sworn list of creditors. Thereafter a person, claiming to be a creditor whose name was not on such list, instituted a suit to enforce an alleged indebtedness of the seller against the stock in the hands of defendant. Such suit was afterward dismissed at the cost of the plaintiff therein, and no liability against the stock in the hands of defendant was ever enforced. Held, that defendant was not entitled to recover from the seller or his trustee in bankruptcy money expended in preparing to defend said creditor's suit.

Where in a suit upon a promissory note, providing for 10 per cent in addition to the amount due as an attorney's fee, the court did not submit the question of an attorney's fee to the jury, but directed them to find the amount of principal and interest due, it was not error for the court, in rendering judgment, to add 10 per cent. to the amount of the verdict as an attorney's fee.

Commissioners' Opinion, Division No. 2. Appeal from District Court, Le Flore County; W. H. Brown, Judge.

Action by J. B. Pope, trustee of the estate of J. R. Olive bankrupt, against Charles Futoransky. From a judgment for plaintiff, defendant appeals. Affirmed.

Wright & Boyd, of McAlester, for plaintiff in error.

J. W Hale and T. H. Du Bois, both of Poteau, for defendant in error.

BURFORD C.

This is a suit brought by the trustee in bankruptcy of the payee of certain promissory notes against the maker thereof. The execution of the notes was admitted, and certain set-offs and counterclaims were pleaded as defenses thereto. It was admitted that the defendant, Futoransky, as second party, and J. H. Olive, bankrupt payee of the note, as first party, prior to bankruptcy, entered into a certain contract, the material portions of which are as follows:

"Said first party agrees to sell to second party the stock of goods contained in his store building in Heavener, Okl., said stock consisting principally of dry goods, ladies' and gents' furnishings, boots and shoes, hats and such other goods usually carried in a store of this class. Amount of stock approximately $5,000.

Considerations.

(a) Second party to pay for above-mentioned stock of goods, on the basis of seventy per centum (70%) of the invoice value of the same, provided, that only new clean stock shall be taken. If any old or damaged stock or remnants, an agreed value shall be arrived at between the parties hereto.

Payments for said stock shall be made by second party as follows: One thousand dollars ($1,000) on completion of the inventory taking, and delivery of clear bill of sale. Five hundred dollars ($500) within thirty days thereafter; balance to be paid in six equal installments thirty days apart, the first installment of the said six to be made within thirty days from the second five hundred dollar payment. Interest on deferred payments at the rate of ten per cent. per annum.

It is further agreed and understood that said first party shall maintain the stock of goods, in substantially as good condition as it is at the present time, until second party shall arrive to commence invoicing; i. e., small needs of staple lines shall be replenished as justified by the sales. However nothing contained in this paragraph shall prevent first party from reducing the stock of goods through retail sales."

Under this contract the defendant, Futoransky, and the bankrupt, Olive, together with certain persons employed by each, some time after the execution of the contract, invoiced the stock of goods and found its invoice value to be $3,262.14, for which amount of goods the defendant paid in cash, and by the notes in suit, 70 per cent. of the face of such invoice, or $2,283.50.

Excluding the defenses which were allowed by the court and sustained by the jury, defendant claimed that he was entitled to certain reductions on the amount due, the first of which was that he expected the stock to invoice $5,000, and that since it did not, he was entitled to damages in the sum of $521.36, being 30 per cent. of the difference between the amount of invoice of the stock and $5,000. The reason for this ingenious claim is not set out in the brief, but we assume that it was upon the basis that...