Gamble v. Riley

• Decision Date: 23 September 1913
• Docket Number: Case Number: 2825
• Citation: 39 Okla. 363,1913 OK 554,135 P. 390
• Parties: GAMBLE v. RILEY et al.
• Court: Oklahoma Supreme Court

1913 OK 554

135 P. 390

39 Okla. 363

GAMBLE v. RILEY et al.

Case Number: 2825

Supreme Court of Oklahoma

Decided: September 23, 1913

Syllabus

¶0 1. BILLS AND NOTES--Conditional Delivery. A promissory note may be delivered conditionally, and this may be accomplished by delivery to the payee himself, with proper instructions in relation to the condition.

2. EVIDENCE--Parol--Contracts. It is elementary that parol evidence is inadmissible to contradict or vary the terms of a valid written instrument. But the rule is almost equally well settled that parol evidence may be given to prove the existence of any separate parol agreement constituting a condition precedent to the attaching of any obligation under the written instrument; this is not to vary the terms of a written instrument, but to prove that no contract was ever made; that its obligation never commenced.

3. TRIAL--Direction of Verdict. Where issues of fact are presented by the pleading and supported by evidence and the facts are disputed, or the credibility of witnesses is drawn in question, or a material fact is left in doubt, or there are inferences to be drawn from the facts proven, the case, under proper instructions, should be submitted to the jury, and it is reversible error in such case to sustain a motion to direct a verdict.

Robert Burns and Locke & Locke, for plaintiff in error.

Womack & Brown and Gilbert & Bond, for defendants in error.

ROBERTSON, C.

¶1 This was an action by L. P. Gamble against Chilion Riley and Hugh B. Carter to recover a money judgment on a certain promissory note; it is alleged in the petition that on April 9, 1909, H. B. Carter and Hugh B. Carter (one and the same person) made, executed, and delivered his note to Chilion Riley in the sum of $ 500, due six months after date, with interest at eight per cent. per annum until paid; that thereafter, before maturity, and for value, said Chillon Riley indorsed said note to plaintiff, who is now the legal owner and holder thereof; that the same is past due and unpaid, etc. There was no service had on Carter, and the case proceeded against Riley as sole defendant, who answered and admitted the execution of the note and the transfer by him by indorsement to plaintiff, but alleged that such transfer was made by defendant Riley, to plaintiff Gamble, in connection with a subscription for stock of the American Home Life Insurance Company of Ft. Worth, Tex., of which plaintiff represented and pretended to be the duly authorized agent, and that said transfer was made in reliance upon the representations and promises of plaintiff that if defendant Riley would subscribe for 100 shares of such stock at $ 30 per share and transfer the note as a payment thereon, certificates for such shares would be issued to him, and the balance, the sum of $ 2,500, would be loaned to him on a tract of 320 acres of land in Oklahoma, with which to pay the remainder of the subscription price of said stock; that said representations were false and untrue, and known to be false and untrue by plaintiff when they were made; that, notwithstanding defendant Riley made application for the loan as agreed, the application was refused, and he could not borrow the money with which to complete the payments. At the time of subscribing for the stock plaintiff gave defendant Riley a receipt for "$ 500.00 as part payment for 100 shares of stock in the American Home Life Insurance Company," and said receipt contained a clause as follows: "Should said subscription be not approved and accepted, the amount paid as per this receipt will be returned." The subscription for stock was not approved, and the stock was not issued, presumably because Riley did not pay the balance, $ 2,500, which he alleged Gamble knew would not be paid unless the loan was consummated. Defendant further alleges that he relied upon the representations made by plaintiff to be true, and acted by virtue thereof and was thereby deceived; that the consideration for said note has wholly failed, and therefore no judgment should be rendered against him thereon. Plaintiff's reply admits the subscription agreement as charged in defendant's answer; denies that any other promise or agreement than that embodied therein was made; denies all other allegations thereof, and avers that if the company refused to issue defendant Riley 100 shares of stock in pursuance of his subscription, it was because he failed to pay for the same, in accordance with the terms of his contract. When all the evidence was in the plaintiff interposed a demurrer to defendant's evidence, and the defendant interposed a demurrer to plaintiff's evidence. The court overruled both demurrers. Whereupon the defendant moved the court for a peremptory instruction to the jury for a verdict in his behalf, which was sustained, and the jury was required to return a verdict in favor of defendant Riley, for his costs and the return of the note or its value, in the sum of $ 550. Plaintiff appeals, and assigns as error: First, the overruling of his motion for a new trial; second, the overruling of his demurrer to defendant's evidence; third, error in peremptorily instructing the jury to return a verdict for the defendant. It is unnecessary to give separate consideration to the first assignment, inasmuch as it necessarily will be considered in the treatment of the second and third. It is argued with earnestness that, inasmuch as Gamble represented himself as an agent selling stock for the American Home Insurance Company of Ft. Worth, he was not selling, and did not purport or pretend to sell, stock of his own, and that therefore he, representing himself as agent for a named principal, is not liable personally on a promise made in his principal's behalf, or for the return of the money received by him, unless he is shown to have acted without authority, or to have been guilty of actual fraud or misrepresentation. For the purpose of considering plaintiff's demurrer to the defendant's evidence, we must admit the truthfulness of his evidence and give to it every...