De Groat v. Focht

• Decision Date: 07 January 1913
• Docket Number: Case Number: 2517
• Citation: 1913 OK 12,131 P. 172,37 Okla. 267
• Parties: DE GROAT v. FOCHT.
• Court: Oklahoma Supreme Court

1913 OK 12

131 P. 172

37 Okla. 267

DE GROAT v. FOCHT.

Case Number: 2517

Supreme Court of Oklahoma

Decided: January 7, 1913

Syllabus

¶0 1. BILLS AND NOTES--Nonnegotiable Notes. A clause in a note reading, "The indorsers, guarantors, and assignors severally waive presentment for payment, protest, and notice of protest thereof, for nonpayment of this note, and consent that time of payment may be extended without notice," does not render it nonnegotiable.

2. SAME--Negotiable Note--"Fixed or Determinable Time." Under the uniform Negotiable Instrument Act, an instrument, to be negotiable, must be payable on demand or at a fixed or determinable time, and a fixed or determinable time, within the meaning of that act, is when the instrument provides for a fixed period after date, on or before a fixed or determinable future time, specified therein, or on or at a fixed time after the occurrence of a specified event which is certain to happen, though the time of happening be uncertain.

3. PLEADING--Judgment on Pleadings. Where a petition alleges defects in the execution of a note, occasioned by mutual mistake of the parties, and the answer admits the defects, it is not error to render judgment on the pleadings, reforming the same.

Error from District Court, Oklahoma County; George W. Clark, Judge.

Action by Fred Focht against Mrs. Frank De Groat. Judgment for plaintiff, and defendant brings error. Affirmed.

R. H. Towne, for plaintiff in error.

Everest, Smith & Campbell, for defendant in error.

ROBERTSON, C.

¶1 On May 11, 1911, Mrs. Frank De Groat, plaintiff in error, made, executed, and delivered to Mrs. M. A. Foster three promissory notes, payable, respectively, in six, seven, and eight months from date; it is alleged in the petition that by mistake the amount for which the first note was given, to wit, $ 50, was omitted, and no definite sum was named, and plaintiff prays that the same be reformed and the proper sum inserted; the other notes were in the sum of $ 50 each, and all, save as to the time they fall due, read as follows:

"$ 50.00. May 11, 1910. Seven months after date, for value received, I, we, or either of us, jointly and severally, waiving grace and protest, promise to pay to the order of Mrs. M. A. Foster, at the Oklahoma City, fifty dollars, with interest at the rate of 8 per cent, per annum, payable annually until paid. The interest, if not paid annually, to become as principal, and bear the same rate of interest. The indorsers, guarantors, and assignors, severally waive presentment for payment, protest and notice of protest thereof, for nonpayment of this note, and consent that the time of payment may be extended without notice. Mrs. Frank De Groat.

"Indorsed: Pay to Ferd Focht. Mrs. M. A. Foster."

¶2 The petition further alleges that a chattel mortgage, on certain personal property, was given to secure the payment of the notes; that default in payment has been made; and prays for the reformation of the first, and for judgment on all three, notes, and for foreclosure of the chattel mortgage, and other proper relief.

¶3 The answer of Mrs. De Groat contains: First, a general denial, and in addition admitted, "Being indebted to said Foster in the sum of $ 150 evidenced by three notes for $ 50 each, due, respectively, on the 11th day of November, and December, 1910, and January, 1911;" and further alleges that she, on November 7, 1910, had been garnisheed in a certain cause pending in the justice of the peace court, wherein Holtzshue Bros. were plaintiffs, and Mrs. M. A. Foster, the payee named in said notes, was defendant, and that, in pursuance of such garnishment proceedings, she had answered to the effect that she was indebted to said payee in the sum of $ 150 for the three notes hereinbefore mentioned, and that, by virtue of said answer, the justice had ordered her to pay said sum into court, to be applied to the payment of the plaintiff's judgment in the cause pending in the justice of the peace court. She further alleged that the notes were nonnegotiable; that she had no notice of their transfer from Mrs. Foster to Focht; that Holtzshue & Holtzshue were necessary parties defendant to the action; and prayed that they be brought in as such, and that she be awarded judgment for her costs. Plaintiff replied by general denial, and later filed a motion for judgment on the pleadings, which, coming on to be heard, was sustained, and the first note was reformed as prayed for, on the admissions of defendant's answer, and judgment for the full amount was entered, and the chattel mortgage ordered foreclosed, and for costs. Defendant complains of said order and judgment, and brings error to reverse the same.

¶4 The first assignment of error raises the question of the negotiability of the notes sued on; and plaintiff in error contends that the clause therein which reads as follows, "the...