Horton v. Birdsong

• Decision Date: 07 January 1913
• Citation: 129 P. 701,35 Okla. 275,1913 OK 16
• Parties: HORTON v. BIRDSONG.
• Court: Oklahoma Supreme Court

129 P. 701

35 Okla. 275, 1913 OK 16

HORTON v. BIRDSONG.

Supreme Court of Oklahoma

January 7, 1913

Syllabus by the Court.

A promissory note may be delivered conditionally, and this may be accomplished by delivery to the payee himself, with proper instructions in relation to the condition.

Error from Oklahoma County Court; Sam Hooker, Judge.

Action by J. W. Birdsong against S. A. Horton. Judgment for plaintiff, and defendant brings error. Reversed and remanded.

Roy F Ford, of Oklahoma City, for plaintiff in error.

Snyder Owen & Lybrand, of Oklahoma City, for defendant in error.

KANE J.

This was an action upon a promissory note, commenced by the defendant in error, plaintiff below, against the plaintiff in error, defendant below. Upon trial there was judgment for the plaintiff, to reverse which this proceeding in error was commenced.

The uncontradicted evidence shows that the note was executed by the maker at Oklahoma City, and forwarded to the payee at Greenville, Tex., by mail; that accompanying the note was a bill of sale, as follows: "I hereby, for valuable consideration, transfer to S. A. Horton all my right, title and interest that I have in the Queen City Oil & Mining Company, and the Oklahoma City Oil Company by reason of investments made for me by said Horton, the consideration being the repayment to me the amount expended for me as evidence by his promissory note of November 18, 1905, which said note and promise to pay shall constitute a complete settlement between the said Horton and myself." Written across the back of the letter forwarded with the bill of sale was the following: "Sign the transfer I inclose; this will let you out. Since I have to pay my obligations, I am going to insist that the well be finished and believe that I will come out alright; yet, in the present shape we will likely have considerable trouble before we get it wound up." In answer to the question, "Did you offer to deliver the bill of sale, properly signed, before the note became due?" Mr. Birdsong replied, "I did not." A great portion of the evidence taken at the trial relates to a certain business transaction between the plaintiff and defendant which transaction led up to and culminated in the execution of the note, but, as this is an action upon the note, we do not consider any of that evidence material. It seems too clear for controversy that the note delivered was upon the express condition that...