Guy Harris Buick Co. v. Bryant

• Decision Date: 17 February 1925
• Docket Number: 14476.
• Citation: 233 P. 752,108 Okla. 117,1925 OK 128
• Parties: GUY HARRIS BUICK CO. v. BRYANT.
• Court: Oklahoma Supreme Court

233 P. 752

108 Okla. 117, 1925 OK 128

GUY HARRIS BUICK CO. v. BRYANT.

No. 14476.

Supreme Court of Oklahoma

February 17, 1925

Syllabus by the Court.

"Defendant may plead and prove, as a counterclaim, any cause of action he may have against the plaintiff, whatever its nature arising out of the cause of action alleged in the petition or connected therewith." Fort Worth Lead & Zinc Co. v Robinson, 89 Okl. 221, 215 P. 205.

In an action on a note and mortgage, the holder of note and mortgage secures a void judgment and issues a void execution thereon, seizing and selling the mortgaged property, in a subsequent trial of the same action; held, the maker of the note and mortgage may plead a conversion of the mortgaged property as a counterclaim.

"Estoppels operate only between parties and privies, and the party who pleads an estoppel must be one who has, in good faith, been misled to his injury." Williams v. Purcell, 45 Okl. 489, 145 P. 1151.

In a counterclaim for the conversion of an automobile, ordinarily the measure of the damage is the fair market value of the automobile at the time and place of conversion, with interest thereon.

Where a jury is waived, and the case tried to the court, the judgment of the court must be given the same force and effect as the verdict of a properly instructed jury, and, if there is any competent evidence reasonably tending to support the judgment of the trial court, the same will not be disturbed upon appeal.

Appeal from District Court, Carter County; W. F. Freeman, Judge.

Action by the Guy Harris Buick Company against J. C. Bryant, who interposed a counterclaim. Judgment for defendant on his counterclaim, and plaintiff appeals. Affirmed.

Sigler & Jackson, of Ardmore, for plaintiff in error.

Brett & Brett, of Ardmore, and Marvin Shilling, of Wilson, for defendant in error.

RILEY J.

This is a suit on a promissory note for the foreclosure of a chattel mortgage. The parties will be referred to as they appeared in the trial court. The plaintiff filed his petition against the defendant on the 7th day of February, 1922, praying for a judgment against the defendant in the sum of $1,000, with interest thereon, and for the sum of $125 attorney's fee his said claim being based upon a promissory note, and for the foreclosure of a chattel mortgage. Thereafter, and on March 22, 1922, a default judgment was rendered against the defendant and in favor of the plaintiff in the amount of $1,000, and interest from May 18, 1921, and an attorney's fee in the sum of $125, and for the foreclosure of the plaintiff's mortgage lien upon a certain Oldsmobile automobile. On March 23, 1922, an order of sale was issued and the Oldsmobile automobile, described in the judgment rendered, was taken from the possession of the defendant by the sheriff of Carter county. On June 5, 1922, an execution was issued against the defendant. On July 15, 1922, defendant filed a motion to vacate and set aside the judgment rendered against him on March 22, 1922, and on September 9, 1922, this motion was by the court sustained, and the judgment was vacated and set aside, for the reason that service of process was shown not to have been had upon the defendant. Thereafter plaintiff caused new process to issue, and on April 28, 1923 the defendant filed his answer, admitting the execution of the notes and mortgage sued upon in the action, and pleading a counterclaim against the plaintiff, by reason of the fact that plaintiff had caused an illegal execution on or about April 1, 1922, by virtue of which the Oldsmobile automobile was taken from the defendant illegally, unlawfully, and without the rendition of a judgment at the time of the issuance of the execution, as aforesaid, and that the plaintiff had thereby secured possession of the car, and had retained the same under the void execution. Defendant further alleged that the car was of the value of $1,000, and that the rental value of the car was in the sum of $5 per day from and after the time of seizure, as above set out. Thereafter the plaintiff filed his reply, denying generally the allegations contained in defendant's answer, and pleading further that the defendant was estopped, in that he permitted the sheriff to take the automobile described, to advertise and sell the same without questioning the validity of the judgment. The plaintiff moved the court to render judgment on the pleadings. The motion was by the court overruled.

An agreed statement of facts was then entered into by and between the plaintiff and defendant, which is as follows, to wit:

"It is agreed between the parties

to this action that this suit was filed by the plaintiff and against the defendant on February 17, 1922; that summons was duly issued and on February 24, 1922, the sheriff made a return showing that he had served J. C. Bryant on February 23, 1922; that on March 22, 1922, judgment was entered for the plaintiff and against the defendant, which judgment is made a part of this agreement; that an order of sale was issued on March 23, 1922, and under the order of sale the automobile described as an eight-cylinder Oldsmobile 45A, and described in said judgment, was taken by the sheriff from the possession of the defendant and advertised and sold under said order of sale; that an alias execution was issued on June 5, 1922, and on July 15, 1922, a motion was filed by the defendant to set aside the judgment, which motion is made a part of this agreement.

On July 14, 1922, the court made an order, setting aside the judgment rendered on March 22, 1922, a copy of the order setting aside said judgment is made a part of this agreement; that the automobile mentioned in the defendant's answer is the same automobile that was sold under the order of sale and judgment as above recited; that the automobile was advertised for sale as by law required and the sale was conducted in all respects as by law required; that the automobile brought $100 at this sale and was sold to the highest bidder, said automobile having been purchased at said sale by the plaintiff herein, Guy Harris Buick Company."

Upon the issues joined and the agreed statement of facts, heretofore set out, the cause was tried to the court without the intervention of a jury. The court found that the plaintiff was entitled to recover from the defendant on his promissory note in the sum of $1,325, and the defendant was entitled to a credit on the said note in the sum of $745.50 by reason of his counterclaim.

It is contended by plaintiff that the matters and things pleaded in defendant's answer were not a proper counterclaim or set-off, for the reason that the defendant was attempting to set up a tort against a contract, and attempting to set off matters which arose after the suit was filed.

We shall direct our attention, first, as to whether or not a tort, which did not occur until after a petition was filed and a summons issued, can be pleaded as a damage and counterclaim.

Section 274, C. O. S. 1921, provides:

"The counterclaim mentioned in the last section must be one existing in favor of a defendant and against a plaintiff, between whom a several judgment might be had in the action, and arising out of the contract or transaction set forth in the petition as the foundation of the plaintiff's claim or connected with the subject of the action or on account of a wrongful attachment or garnishment issued and levied in said action after the same has been set aside. The right to relief concerning the subject of the action mentioned in the same section must be a right to relief necessarily or properly involved in the action for a complete determination thereof, or settlement of the question involved therein. Provided, that either party can plead and prove a set-off or counterclaim of the proper nature, in defense of the liability sought to be enforced by the other party, and it shall not be necessary that such set-off shall exist as between all parties plaintiff and defendant in such suit, but any party may enforce his set-off or counterclaim against the liability sought to be enforced against him. Such set-off or counterclaim shall not be barred by the statutes of limitations until the claim of the plaintiff is so barred."

Section 275, C. O. S. 1921, provides:

"A set-off can only be pleaded in an action founded on contract, and

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