Jackson v. Fennimore

• Decision Date: 30 September 1924
• Docket Number: Case Number: 13124
• Citation: 104 Okla. 134,1924 OK 814,230 P. 689
• Parties: JACKSON v. FENNIMORE.
• Court: Oklahoma Supreme Court

1924 OK 814

230 P. 689

104 Okla. 134

JACKSON v. FENNIMORE.

Case Number: 13124

Supreme Court of Oklahoma

Decided: September 30, 1924

Syllabus

¶0 1. Bills and Notes--Failure of Defense -- Directing Verdict.

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.

2. Appeal and Error--Record--Judgment.

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.

3. Interest -- Rate -- Contract--Presumptions.

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, Comp. Stats. 1921.

4. Same--Provision in Note for Higher Rate in Case of Default--Legality.

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.

5. Bills and Notes--Inclusion of Attorney's Fee in Judgment.

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.

Percy Powers, for plaintiff in error.

W. B. Garrett, for defendant in error.

JONES, C.

¶1 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 alleged 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 the Honorable 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 an order was made of record, disclosing the court's order. The case was tried before the Honorable Thomas A. Edwards, assigned judge, and a jury was empaneled 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:

"Gentlemen of the Jury: The court instructs you that in a case of this kind, where a negotiable note is executed and delivered and is sold to another before maturity, he takes it free of any defense against those who gave it. And in this case, if Mr. Jackson has any recourse, it will be as against the Reliable Hail Insurance Company. I will ask Mr. Van Wagner to act as foreman and sign the verdict which is submitted to you."

¶2 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 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 costs 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:

" (1) That the district court of Greer county, Okla., erred in overruling the motion of plaintiff in error for a new trial.

"(2) That said court erred in sustaining the demurrer of defendant in error to the evidence of the plaintiff in error.

"(3) That said judgment is contrary to the law and evidence and not supported by either."

¶3 The first proposition presented is the error complained of, wherein the court directed a verdict for the plaintiff and refused to submit to the jury the question of whether or not the plaintiff became a purchaser for value in due course, and in support of this contention the appellant cites the case of Continental Insurance Company v. Chance, 48 Okla. 324, 150 P. 114. In that case the material controversy arose over the question of whether or not...