Holmes v. Halstid

• Decision Date: 23 September 1919
• Docket Number: Case Number: 9103
• Parties: HOLMES et al. v. HALSTID et al.
• Court: Oklahoma Supreme Court

1919 OK 262

183 P. 969

76 Okla. 31

HOLMES et al. v. HALSTID et al.

Case Number: 9103

Supreme Court of Oklahoma

Decided: September 23, 1919

Syllabus

¶0 1.Mortgages--Foreclosure--Right to Jury.

In an action to recover judgment on promissory notes executed by defendants and for foreclosure of mortgage lien, made to secure their payment, where issue is joined as to the indebtedness due, the case is one properly triable before a jury, as provided in sec. 4993, Rev. Laws 1910.

2. Principal and Agent--Existence of Agency--Jury Question.

Agency, when made an issue, is a question of fact to be determined, in proper cases, by the jury, from all the facts and circumstances in evidence.

3.Appeal and Error--Instructions--Harmless Error.

While it is error for the court to instruct the jury upon questions of law not applicable to the issues involved, or evidence in support thereof, even though the instruction correctly states an abstract proposition of law, yet the giving of such instruction will not afford ground for reversal unless it is apparent that the instruction was calculated to confuse or mislead the jury to the prejudice of the losing party.

4.Trial--Instructions--Requested Instructions.

It is not error for the court to refuse a requested charge when the same proposition is covered by the instructions given, and which, taken as a whole, fairly submit to the jury the law applicable to the case.

Error from District Court, Love County; W. F. Freeman, Judge.

Action by Edward R. Holmes and Ralph W. Holmes, a partnership doing business under the firm name of R. E. Holmes & Sons, against L. B. Halstid and S. R. Halstid, his wife, Willard P. Holmes, Mollie L. Jordan and J. L. Jordan. From a judgment in favor of defendants L. B. Halstid and S. R. Halstid, plaintiffs bring error. Affirmed.

Hatchett & Ferguson, for plaintiffs in error.

H. H. Brown and R. B. Brown, for defendants in error L. B. Halstid and S. R. Halstid.

SHARP, J.

¶1 Plaintiffs'' action against defendants, L. B. Halstid and S. R. Halstid, was to recover personal judgment on three promissory notes for the principal sum of $ 1,800, and to foreclose a real estate mortgage, given to secure their payment. Defendant Willard P. Holmes was the holder of a junior mortgage, made by the Halstids contemporaneously with the execution of the mortgage to R. E. Holmes & Sons, and was made a party to the foreclosure proceedings in order that his right, title and interest therein might be decreed subject to the plaintiffs'' mortgage. The petition also charged that Mollie L. Jordan and J. L. Jordan asserted some right, title or interest in the premises, and they were made parties defendant in order that such interest, if any, might be foreclosed. Defendant, Willard P. Holmes, filed his answer and cross-petition against his co-defendants, L. B. Halstid and S. R. Halstid, and asked for a personal judgment against them in the sum of $ 180, and for a foreclosure of his mortgage. The Halstids answered admitting the giving of the notes and the making of the mortgage, and charged that they had never received any portion of the loan, and that hence they were not indebted to the plaintiffs in any sum. Defendants also filed a cross-petition against their co-defendants, Mollie L. Jordan and J. L. Jordan, upon which issue was joined, and also filed their answer or reply to the answer and cross-petition of the defendant, Willard P. Holmes, which answer was, to the effect, that no consideration having passed to them for the principal loan in favor of R. E. Holmes & Sons, they were not on account thereof indebted to said defendant. Answer was also filed by the Halstids to the cross-petition of the defendants, Mollie L. Jordan and J. L. Jordan. At the trial of the foreclosure proceedings by the plaintiffs and defendant, Willard P. Holmes, hearing of the issues joined between the Halstids and the Jordans was continued for the term. The judgment was in favor of the Halstids and against the plaintiffs and the defendant, Willard P. Holmes.

¶2 From the adverse judgment, defendant, Willard P. Holmes, has not appealed, so that the only question presented is, should the judgment in favor of the Halstids and against the plaintiff, R. E. Holmes & Sons, be affirmed? The brief of plaintiffs in error contains four principal assignments of error: (1) The case was not properly triable before a jury. (2) The verdict of the jury and the judgment entered thereon are not supported by the evidence. (3) Error in giving Instruction No. 7. (4) Error in refusing to give requested Instruction No. 4.

¶3 Plaintiffs'' action was one "for the recovery of money" within the meaning of section 4993, Rev. Laws. It was their contention that the Halstids were indebted to them in the sum evidenced by their notes. This was denied by the Halstids, who, in effect, set up a failure of consideration for the notes, which, if established, entitled them to a verdict. The primary issue was whether, notwithstanding the execution of the notes, defendants were indebted to plaintiffs in any amount. Such being the nature of plaintiffs'' action and of the issue joined, the defendants were entitled to a jury trial as a matter of right. Sherman v. Randolph, 13 Okla. 224, 74 P. 102; Maas v. Dunmyer, 21 Okla. 434, 96 P. 591; Brewer v. Martin. 40 Okla. 350, 138 P. 166; Hartsog v. Berry, 45 Okla. 277, 145 P. 328.

¶4 Was Jesse L. Jordan the agent of the plaintiffs or of the Halstids in procuring the loan? The effect of the jury''s verdict sustained defendants'' contention that Jordan was not their agent. This conclusion is sufficiently established by the evidence. The application for the loan was made out on a blank form addressed to Willard P. Holmes of Kansas City, Mo., who was named as Halstid''s agent "to negotiate me a loan of $ 1,800," in consideration of which Halstid was to pay a commission of $ 90 cash and execute two commission notes in the sum of $ 90 each. Throughout the application authority was conferred upon Holmes to do numerous things, among which were to perfect the title, procure abstract, pay the taxes, etc. At the conclusion of the application, notwithstanding the power conferred on Willard P. Holmes in the matter of procuring the loan, it was also provided that Jordan should act as the local agent of Halstid in negotiating the loan. To this application Jordan signed the name of L. B. Halstid, adding immediately below the signature the words: "By Jesse L. Jordan, agent." Jordan testified that he was "getting a loan for Halstid" and also represented the Jennings Investment Company. His testimony in respect to the relationship of the Jennings Investment Company and R. E. Holmes & Sons is as follows:

"Q. Mr. Jordan, do you know what relation the Jennings Investment Company had with R. E. Holmes & Son? A. No, sir. Don''t know exactly. I understand they represented Holmes. Don''t know for sure. Q. I will ask you this question: Was this loan made through the Jennings Investment Company? A. Yes, sir. It was made through the Jennings Investment Company. Q. The check they sent you on behalf of R. E. Holmes & Sons was sent you by the Jennings Investment Company? A. Yes, sir. And all the loan papers were made out by them."

¶5 The net proceeds of the loan, after deducting various items of expense, was $ 1,696, which sum the Jennings Investment Company remitted the Jordan Company September 3, 1914, enclosing its check for $ 54 commission. On May 22, 1914, Halstid signed an order addressed to Willard P. Holmes, authorizing the payment of the net proceeds of the loan to the Jennings Investment Company. This order, it is urged, authorized Jordan to apply the proceeds of the loan in settlement, or partial settlement at least, of Halstid''s indebtedness to him.

¶6 The foregoing testimony was offered by the plaintiffs, and of itself, aside from the testimony of the defendants and that of the witness Wicker, who had formerly worked for the Jordan Company and at the time of the...