Jones v. Citizens' State Bank
| Decision Date | 23 September 1913 |
| Citation | 135 P. 373,39 Okla. 393,1913 OK 557 |
| Parties | JONES v. CITIZENS' STATE BANK. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
Where answer denying execution of note is not verified as required by section 3986, St. 1893 (section 4759, Rev. Laws 1910), but plaintiff joins issue thereon by general denial in reply and, without in any manner raising question of sufficiency of answer, evidence pro and con is introduced upon the trial, a motion to direct a verdict for plaintiff does not question the sufficiency of the answer but raises merely the question of the legal sufficiency of the evidence to sustain a verdict against plaintiff.
Where insufficiency of answer, for want of verification, as denial of execution of note sued on, is not questioned in any way and its sufficiency appears to have been assumed by both parties throughout the trial, an amendment, by verification may be allowed in furtherance of justice before or after judgment, under section 4017, St. 1893 (section 4790, Rev Laws 1910).
The question of error in peremptory instruction of verdict must be determined by eliminating all adverse evidence and accepting as true all evidence, including every reasonable inference deducible therefrom, in favor of the party against whom such instruction was given.
A verdict cannot be peremptorily instructed against a party where the evidence would sustain one in his favor.
A note given for purchase price of property and made payable to plaintiff at request and for benefit of seller is subject, in hands of plaintiff, to all infirmities in the execution and original consideration between the maker and such seller, in the absence of circumstances creating an estoppel in equity.
A promissory note may be delivered by the maker to the payee, subject to a condition which prevents it from becoming a complete contract in præsenti, where there is a failure to perform or comply with such condition.
Evidence which is not of the quality or character required by law, although not intrinsically destitute of probative quality, admitted without objection, and not in conflict with legal evidence, should be considered as if it was legal evidence.
Where, in a suit on a note made for purchase price of real property and made payable to plaintiff at the request and for the benefit of the seller, there is some evidence tending to prove that there was no absolute delivery of same and same passed into possession of plaintiff subject to the condition that the seller must convey title to such property to such maker by warranty deed, and where such seller has and can convey no title to such property, and where plaintiff does not part with anything of value nor suffer any detriment as a result of the conduct of the maker of same, it is error to peremptorily instruct a verdict for plaintiff.
Additional Syllabus by Editorial Staff.
A denial of absolute delivery and an allegation of conditional delivery is, in effect, a denial of complete execution of the note.
The failure of defendant, in an action on a note, to verify his answer denying execution and containing affirmative matter was waived by the filing of a reply denying the allegations of the answer; both parties having gone to trial and submitted evidence on the theory that there was a proper verification. See, also, Horne v. Oklahoma State Bank of Atoka (on rehearing) 139 P. 992.
Where evidence excluded by the trial court does not appear in the record, the question of its admissibility is not open for review.
The testimony of a witness to the effect that a party to the action could not convey title to land, unaccompanied by a statement of the facts upon which the assertion was based, was a mere conclusion of the witness.
Commissioners' Opinion, Division No. 1. Error from County Court, Okfuskee County; W. A. Huser, Judge.
Action by the Citizens' State Bank against Berry Jones. From a judgment for plaintiff, defendant brings error. Reversed, and remanded for new trial.
Huddleston & Hockensmith, of Okemah, for plaintiff in error.
J. B. Patterson, of Okemah, for defendant in error.
Plaintiff in error will be designated as defendant and defendant in error as plaintiff, in accord with their respective titles in the trial court. Plaintiff, as payee in possession, sues on a promissory note, dated December 13, 1909, due February 12, 1910, for the principal sum of $400, with interest at the rate of 10 per cent. per annum from date until paid, interest to become as principal when due and bear the same rate of interest, signed by defendant.
In plaintiff's petition it is alleged that defendant, being indebted to it, executed and delivered the note; and defendant's answer, besides a general denial, alleges that he signed but did not deliver the note to plaintiff, and further that same was given in consideration that one S. M. Wilson would, by good and sufficient deed, convey to defendant an undivided one-half interest in and to a certain quarter section of land; that this note was placed in the hands of plaintiff upon condition that it should be returned to defendant if Wilson did not make such conveyance; that Wilson never had any right, title, claim, or interest in or to said real property and failed and refused to convey any to defendant. The answer further alleges that at the time of this transaction Wilson was indebted to plaintiff and was credited on such indebtedness by the amount of said note. It is also alleged in the answer that plaintiff had full knowledge of and assented to the agreement and understanding aforesaid and was not a bona fide purchaser of the note in due course for value and without notice and the note was without consideration. The answer was not verified as required by section 3986, Stat. 1893 (section 4759, R. L. Ann.), of denials of the allegation of the execution of such instruments. Plaintiff replied by general denial of the allegations of the answer; and a trial was had upon the issues thus made, without any attack whatever being made upon the answer for want of verification.
Plaintiff's president, Mr. Dill, who was its only witness, testified that this note, which was put in evidence, was drawn by him and signed by defendant in his presence behind plaintiff's counter at about 3 o'clock on the afternoon of its date in consideration of $400 by it loaned to defendant; later this witness said the money was advanced to Wilson before the note was given and in defendant's absence but without claim that such advance was at the instance or request of defendant or even with his knowledge.
Defendant contradicted the foregoing testimony of plaintiff's president as to the consideration of the note and as to the time and presence of said president when he signed it. The substance of defendant's testimony pertinent here will appear from the following questions to and answers by him at the trial: "Q. Did you ever speak to Mr. Dill about loaning you any money? A. No, sir; never asked him for any money. Q. Did he loan you, or any other person in the bank loan you, $400 at the time you executed that note? A. No sir. Q. State how you came to sign that note? A. Sam Wilson got it on his place and he was wanting to sell it to me and Dill also, and Dill spoke to me about it and said, 'If you will buy it, we will wait four months on you, if you will buy the place;' and it went on for about two weeks. Sam Wilson come to me about that time and said, 'The deed is wrote up and the note is ready for you to sign, and I am going away on the noon train to Arkansas, and I want it fixed up before I leave;' and I goes to the Citizens' Bank and signs this note. Flesher handed me the deed and I stuck it in my pocket. Bert turned to go out of the bank and I think I handed him the note to look at, and I looked at it [evidently meaning the deed]; it was a quitclaim deed; and I turned round and said I wouldn't stand for that; said if I bought it that I didn't want a quitclaim deed. He argued it was all right. I said I would have to have a warranty deed if I got it. They told me to take it to any lawyer in town and see if it is not all right. Sam Wilson says to me, 'I will make you a warranty deed if it is not all right;' so I taken it to Huddleston and he said it was no good; 'it only conveys his interest if he has got any, it looks like to me.' So I called Sam up; he had gone home. It was then 11 o'clock, and it might have been a little after, for I look at my watch and-- Well, Dill [evidently meaning Sam Wilson] said he would meet me back at the Citizens' Bank and make me a warranty deed, and then he said, 'Can you wait till I come back from Arkansas?' I said, 'Yes;' and he goes then on to Arkansas; and during this time we examined the title and he had no interest himself in the land. He offers to make me a warranty deed at the First National Bank. I said I didn't want it; that he had no interest in it; and I wanted him to give me my note back and take the deed. Q. I will ask you to state if you, on the 13th of December, 1909, if you had a conversation with Flesher or Dill relative to the note and deed after this first transaction? A. Dill wasn't in town at the time, so I did with Flesher; then I told him I wouldn't accept it and also that I didn't consider the note any good until this thing was fixed up. Dill come in on the 3 o'clock train. I went up about 3:30, and he was back in the bank then. I took the deed to him and told him I wanted the note, so Dill told me he wouldn't do it; he wouldn't turn me back my note. Q. Have you still got the deed? A. Yes, sir. Q. Are you still willing to return it to S. M. Wilson? A. Yes, sir. Q. Have you got that deed now in your possession? A. Yes, sir. Q. I will ask you to examine this instrument and see if you can identify...
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