Harlow Publ'g Co. v. Walden

Decision Date01 May 1934
Docket NumberCase Number: 22107
Citation1934 OK 263,32 P.2d 278,168 Okla. 163
PartiesHARLOW PUBLISHING CO. v. WALDEN.
CourtOklahoma Supreme Court
Syllabus

¶0 1. Bills and Notes--Delivery of Note Upon Condition or as Escrow.

A promissory note may be delivered by the maker to the payee upon condition, or as an escrow.

2. Same--Nonperformance of Conditions of Delivery as Defense in Action on Note.

Where the maker of a note delivers it to the payee with the agreement that it shall not take effect until the happening of a certain contingency or the performance of a certain condition, and where neither the contingency has occurred nor the condition been performed, the note never became operative, and an answer alleging such conditional delivery and the nonperformance of the conditions imposed upon delivery, states a defense to an action upon the note.

3. Evidence--Parol Evidence Admissible to Show Delivery of Written Instrument Was Conditional.

Evidence offered for the purpose of showing that a written instrument was delivered conditionally does not constitute contradicting or varying a written instrument by parol. Such evidence does not tend to show any modification or alteration of the written agreement, but that it never became operative, and that its obligation never commenced. A written contract must be in force to make it subject to the parol evidence rule.

4. Bills and Notes--Judgment for Payee for Only Amount Tendered Sustained.

Record examined, and held, that the answer of the defendant stated a defense to the action and that the evidence amply sustains the allegations contained therein and is sufficient to support the verdict, and judgment of the court.

Appeal from District Court, Love County; John B. Ogden, Judge.

Action by the Harlow Publishing Company against Asa E. Walden on promissory note. Judgment for plaintiff for amount of defendant's tender. Plaintiff appeals. Affirmed.

Frank Eagin, for plaintiff in error.

Guy H. Sigler. P. M. Jackson, Crawford W. Cameron, and J. Woody Dixon, for defendant in error.

WELCH, J.

¶1 This is an appeal from the district court of Love county. Harlow Publishing Company is plaintiff in error, and Asa E. Walden is defendant in error. The parties occupy the same relative position in this court as they occupied in the trial court, and will hereinafter be referred to as plaintiff and defendant.

¶2 Plaintiff commenced its action by filing its petition declaring on a promissory note, praying for judgment for the principal sum of $ 88.89; the sum of $ 48.49 interest, and $ 28 attorney's fee. The petition is in all essential respects in regular form. The defendant's answer is in the form of a general denial and contains the following affirmative defensive matter:

"Defendant further answering alleges and states that on or about -- of April, 1922, the agent or representative of the plaintiff company approached him on the street of Marietta, the name of said representative being unknown to this defendant and represented to this defendant that the firm of Cameron and Walden, which had prior to the time been dissolved, owed the plaintiff company an account; that this defendant was in the act of departing from the city of Marietta to Ardmore and told said representative that he did not know anything about the account or the amount thereof, and that he would see him later, but that said representative insisted that this defendant sign a note for said alleged account and that after much persuasion on the part of said representative this defendant signed a note with the specific understanding that Crawford W. Cameron was to sign note with him, and that said plaintiff company was to satisfy him that the amount of the account was correct, that said note was not to be of any force or effect unless Crawford W. Cameron, his former partner, signed said note, and said representative agreed that in the event said Crawford W. Cameron did not sign the note, then said note was to he returned to this defendant. That this defendant learned upon investigation that the firm of Cameron and Walden only owed plaintiff company at that time approximately $ 20; that Crawford W. Cameron did not sign said note and that this defendant did not hear anything further in reference to the same for approximately four years, being a short time prior to the filing of this action, and that was the first time that defendant learned that plaintiff had said note; that the understanding and agreement by this defendant and the plaintiff in that the note was not to be effective unless same was signed by Crawford W. Cameron not carried out and that said note was -- and kept by said plaintiff under such false and fraudulent representation and without any consideration. That this defendant was not indebted to said plaintiff as a matter of fact in the excess of $ 20; and that said defendant hereby tendered into court the sum of $ 20; that by reason of such facts herein set up, this defendant is entitled to judgment and to have said note canceled, set aside, and held for naught."

¶3 Plaintiff's motion for judgment on the pleadings was overruled by the court and exceptions saved; plaintiff objected to the introduction of any evidence and moved for judgment on the opening statement of defendant and requested an instructed verdict, all of which motions and objections were overruled by the court and exceptions saved. Exceptions were likewise taken to the adverse ruling of the court upon plaintiff's objection to the introduction of certain testimony upon the grounds that it varied the statements of a written contract.

¶4 The cause was tried to a jury, resulting in a verdict ill favor of plaintiff in the sum of $ 20, with interest thereon from date. The judgment of the court is that plaintiff recover the sum of $ 20 and $ 14.50 interest, and $ 17 attorney's fee, and costs...

To continue reading

Request your trial
8 cases
  • Bredouw v. Jones
    • United States
    • Supreme Court of Oklahoma
    • May 10, 1966
    ...... conditional upon the defendants remaining in possession of the promises as lessee, citing, Harlow Publishing Co. v. Walden, 168 Okl. 163, 32 P.2d 278; Farmers' Bank of Roff v. Nichols, 25 Okl. 547, ......
  • Fullerton's Estate, In re
    • United States
    • Supreme Court of Oklahoma
    • July 3, 1962
    ...... In Harlow Pub. Co. v. Walden, 168 Okl. 163, 32 P.2d 278, we stated: . 'Evidence offered for the purpose of ......
  • Sharp v. Young
    • United States
    • Supreme Court of Oklahoma
    • April 5, 1938
    ......299, 237 P. 578); and such contingency may be shown by parol evidence (Harlow Pub. Co. v. Walden, 168 Okla. 163, 32 P.2d 278).        ¶11 By proving the aforesaid ......
  • American Perforating Co. v. Oklahoma State Bank
    • United States
    • Supreme Court of Oklahoma
    • January 6, 1970
    ......Fullerton, Deceased (1962) Okl., 375 P.2d 933; Harlow Publishing Company v. Walden (1934), 168 Okl. 163, 32 P.2d 278; Hogue et al. v. McClain County ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT