Jackson v. Fennimore
| Decision Date | 30 September 1924 |
| Docket Number | 13124. |
| Citation | 230 P. 689,104 Okla. 134,1924 OK 814 |
| Parties | JACKSON v. FENNIMORE. |
| Court | Oklahoma Supreme Court |
Rehearing Denied Nov. 18, 1924.
Syllabus by the Court.
It is not reversible error for the trial court to sustain a motion for directed verdict, in an action based upon a promissory note, fair on its face, which has been assigned in due course, for value, before maturity, where the only defense pleaded is by way of an unverified general denial, and denial of ownership in the assignee, when the proof on the part of the plaintiff is conclusive as to all the material allegations of the petition, and no contradictory evidence is offered on the part of the defendant.
A mere recital in the record to the effect that a motion or demurrer was overruled, or sustained, is nothing more than a memorandum, wholly wanting in the essential elements of a judgment, and therefore insufficient to support an assignment of error.
When a rate of interest is prescribed by law or contract, without specifying the period of time by which such rate is to be calculated, it is deemed an annual rate. Section 5096, C. S 1921.
An agreement in a promissory note to pay an additional legal rate of interest on the principal of the note from its date in case of default in the payment of principal or any interest coupon, when due, is not a penalty, but is an agreement into which the parties have a right to enter, and is binding.
The court, when directing a verdict, may reserve the right to render judgment for an attorney's fee provided for in the note sued on, and render judgment including same, where no pleading has been filed or proof offered, calling in question the validity of the fee, or the reasonableness thereof.
Commissioners' Opinion, Division No. 3.
Appeal from District Court, Greer County; Thos. A. Edwards, Judge.
Action by G. O. Fennimore against B. M. Jackson. From a judgment for plaintiff, defendant appeals. Affirmed.
Percy Powers, of Mangum, for plaintiff in error.
W. B Garret, of Mangum, for defendant in error.
This action was instituted in the district court of Greer county on January 21, 1923, by the appellee, plaintiff in the lower court, against the appellant, defendant in the lower court, to recover $99 interest and attorney's fee, as evidenced by a certain promissory note due August 15, 1920, and duly executed by B. M. Jackson, appellant herein. The defendant filed an answer in which he denied that the plaintiff G. O. Fennimore was the owner of said note, and that the pretended assignment or transfer made by the Reliable Hail Insurance Company, payee, named in said note to the plaintiff, Fennimore, was not in good faith, but made as a pretense or sham, and without valuable consideration. He further set forth in his answer that said note was given in payment of the premium of a certain hail insurance policy, issued by said insurance company to the defendant, Jackson, covering 90 acres of wheat, and further avers that said crop of wheat had been damaged by hail, and that due notice had been given of such damage to the insurance company, and that they had failed and refused to consider same, and that said insurance policy was worthless, and that the consideration for said note had failed.
The record discloses that the plaintiff lodged a motion to strike the major portion of the defendant's answer, and that, on hearing of same before Judge T. P. Clay, district judge of Greer county, the motion was sustained; but the record fails to disclose any order or journal entry showing what the order contained, in fact we assume that no order was made of record disclosing the court's order. The case was tried before Hon. Thomas A. Edwards, assigned judge, and a jury was impaneled and sworn to try the case, whereupon the deposition of plaintiff was offered in evidence, in which he testified to the purchase of the note before maturity and for a valuable consideration, and the note was introduced in evidence, and deposition of the secretary of the insurance company, J. E. Brown, was offered in evidence, who testified to the transfer of the note to the plaintiff herein, and thereupon plaintiff rested his case, whereupon the defendant was called as a witness, and the appellant in his brief states that objections were made to practically all of his testimony, which was sustained by the court, and that he was not allowed to testify. However, he does not set forth the evidence tendered, or the objections made, and therefore the court is unable to determine the merit, if any, of this contention. At the close of the testimony of the defendant, Jackson, the defendant rested his case, and counsel for appellee moved for a directed verdict, whereupon the court said:
To all of which the defendant excepted, and, in accordance with the above directions, the jury returned a verdict for the plaintiff, and fixed the amount of recovery at $99, with interest from April 28, 1920, at the the rate of 10 per cent. per annum.
The court rendered judgment against the defendant for the sum of $99, with interest from April 28, 1920, in accordance with the verdict of the jury, and for the further sum of $25 attorney's fee and all cost of action. Motion for a new trial was filed and overruled, and the defendant appealed, and set forth in his assignment of error the following specifications of error:
"First, that the district court of Greer county, Okl., erred in overruling the motion of plaintiff in error for a new trial; second, that said court erred in sustaining the demurrer of defendant in error to the evidence of the plaintiff in error; third, that said judgment is contrary to the law and evidence, and not supported by either."
And the first proposition presented is the error complained of wherein the court...
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