Gordon v. Slate

Decision Date30 October 1934
Docket NumberCase Number: 22968
PartiesGORDON v. SLATE.
CourtOklahoma Supreme Court
Syllabus

¶0 I. FRAUD--Fraud not Presumed.

Fraud, in a law action, is never presumed, but Must be proved as any other fact.

2. SAME--Circumstances as Proof.

Circumstances altogether inconclusive, separately considered, may by their number and joint operation, especially when corroborated by moral coincidences, constitute conclusive proof of fraud.

3. APPEAL AND ERROR--REVIEW--Sufficiency of Evidence in Law Case Tried to Court.

Where a jury trial in a law case is waived and the same tried by the court, the judgment thereof will not be disturbed if there is any evidence reasonably supporting it.

Appeal from District Court, Oklahoma County; Asa E. Walden, Assigned Judge.

Action by S. N. Slate against Abe Gordon. Judgment for plaintiff, and defendant appeals. Affirmed.

Oscar C. Simpson and Henry L. Goddard, for plaintiff in error.

Ellmore Pinnick, for defendant in error.

PER CURIAM.

¶1 This was an action brought by S. N. State, defendant in error, hereinafter referred to as plaintiff, against Abe Gordon, plaintiff in error, hereinafter referred to as defendant, for the recovery of the sum of $ 390, plus reasonable attorney fees, as double the amount of interest paid on an alleged usurious loan.

¶2 The petition, by sufficient and appropriate pleading, alleged a usurious transaction by which the plaintiff borrowed from the defendant the sum of $ 300, on October 8, 1927, and repaid it on December 17, 1928, together with an aggregate of $ 195, as interest on the loan for the period. The answer and the reply thereto were each in substance a general denial.

¶3 Thereafter a dismissal of the action with prejudice was filed, but the same was stricken from the files on the petition of the plaintiff, the evidence thereon not appearing in the record. After this action an amended answer was filed, reiterating the general denial, and alleging the dismissal of the action and a settlement of the demand. To the amended answer a reply was filed in the nature of a general denial, and alleging that the dismissal and settlement was procured by fraud and deceit and was without consideration.

¶4 These issues were tried to the court without the intervention of a jury, resulting in a judgment for the plaintiff.

¶5 The usurious transaction, and the sufficiency of the pleading and evidence to support a judgment on that basis, are assumed by all parties to the appeal, but the controversy here relates entirely to the dismissal and settlement of the action.

¶6 The essential facts for examination of the issues presented and for determination of this cause are hereafter set out.

¶7 The plaintiff owned a diamond ring that under the evidence had a maximum value of $ 1,000, which he pawned to the defendant to secure the loan of $ 300 in question.

¶8 The controversy here relates to the transaction in which the plaintiff sold this ring to the defendant for $ 450 while this action was pending trial. The plaintiff contends that the amount was paid as the purchase price of the ring. The defendant contends that the amount paid included the settlement of this action. The record discloses that some two weeks prior to the transaction one Ginden, a friend of the defendant, and likewise engaged in the same business, suggested to the plaintiff that the defendant would settle the suit. Thereafter the plaintiff, being in need of money, went to Ginden, who called the defendant to his place of business. The matter of the settlement of the case was discussed, and the defendant advised the plaintiff that he had no ease. There is a dispute as to what then occurred, but the evidence discloses that the plaintiff executed three instruments, being a stipulation of settlement that provided for the sale of the ring and the dismissal of this action, a receipt for payment of advanced money, and a dismissal of the action. There was another instrument purportedly signed by the plaintiff, the execution of which he denied, in the nature of an affidavit that no usury was charged the plaintiff by the defendant, but that the payments set out in the petition in the case were for money borrowed by the plaintiff. Under the later testimony of both the plaintiff and defendant, the recitals contained in the affidavit were false, and the falsity of the same at the time was unquestionably known by the defendant. The plaintiff did not read the instruments, but signed them on the representation of the defendant that they were necessary to effect the transfer of title of...

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12 cases
  • Bhd. Trainmen v. Brown, Case Number: 27126
    • United States
    • Oklahoma Supreme Court
    • March 30, 1937
    ...proof she must assume and carry forward. ¶9 As a rule fraud is never presumed. Herron v. M. Rumley Co., 29 Okla. 317, 116 P. 952; Gordon v. State, 169 Okla. 390. 37 P.2d 270; and Cromwell v. Ream, 175 Okla. 408, 52 P.2d 752, and other cases. ¶10 We have said that the proof must be clear, co......
  • Sabin v. Midland Sav. & Loan Co.
    • United States
    • Oklahoma Supreme Court
    • October 20, 1936
  • Skelly Oil Co. v. Corp.
    • United States
    • Oklahoma Supreme Court
    • September 20, 1938
    ...operation, especially when corroborated by moral coincidences, be sufficient to constitute conclusive proof of fraud. Gordon v. Slate, 169 Okla. 399, 37 P.2d 270. The review here, therefore, resolves itself almost entirely into addiscussion of the evidence. ¶5 The Skelly company had been op......
  • Sabin v. Midland Sav. & Loan Co.
    • United States
    • Oklahoma Supreme Court
    • October 20, 1936
    ... ... the court, the judgment thereof will not be disturbed, if ... there is any evidence reasonably supporting it." ... Gordon v. Slate, 169 Okl. 399, 37 P.2d 270, 271; ... Fitzgerald v. Illinois Life Ins. Co., 169 Okl. 583, ... 37 P.2d 952; Johnson v. McDonald, 170 Okl ... ...
  • Request a trial to view additional results

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