Kelley v. Hamilton

• Decision Date: 30 March 1920
• Docket Number: 9699.
• Citation: 189 P. 535,78 Okla. 179,1920 OK 147
• Parties: KELLEY v. HAMILTON.
• Court: Oklahoma Supreme Court

189 P. 535

78 Okla. 179, 1920 OK 147

KELLEY v. HAMILTON.

No. 9699.

Supreme Court of Oklahoma

March 30, 1920

Rehearing Denied May 4, 1920.

Syllabus by the Court.

Section 6, chapter 264, Sess. Laws 1917, has no application to promissory notes of less than eight months' duration.

In an action to recover on a note which contains the provision "providing the entire house is completed satisfactory as per contract and specifications for work on house received," and where plaintiff introduced in evidence said note and copy of building contract and the certificate of the architect, accepting the house, with the exception of certain items of work enumerated, which were to be completed and plaintiff offers evidence that he has completed all of said work enumerated by said architect, he has thereby made out a prima facie case, and it is not error to overrule a demurrer to the evidence.

A contractor and builder who has in good faith endeavored to perform all that is required of him by the terms of his contract for the construction of a building, and has in fact substantially performed the same, is ordinarily entitled to sue upon his contract and recover the contract price, less proper deductions therefrom on account of omissions deviations, and defects chargeable to him, especially where the owner occupies and uses such building.

Where the evidence is conflicting and the court is asked to direct a verdict, all facts and inferences in conflict with the evidence against which the action is to be taken must be eliminated entirely from consideration and totally disregarded, leaving for consideration that evidence only which is favorable to the party against whom the motion is leveled.

Instructions examined, and held to correctly state the issues in the case, and fairly present the law applicable to the facts and pleadings, and no prejudicial error was committed in the giving of said instructions.

It is not error to refuse an instruction when the court has included the substance of said instruction in the instructions given.

Evidence examined, and held sufficient to support the finding of the jury.

Appeal from District Court, Craig County; Preston S. Davis, Judge.

Action by John Hamilton against Lula N. Kelley. Verdict and judgment for plaintiff, and defendant appeals. Affirmed.

C. Caldwell, of Vinita, for plaintiff in error.

Bennett & Wilson, of Miami, for defendant in error.

McNEILL J.

The defendant in error, the plaintiff below commenced this action in the district court of Craig county against the plaintiff in error, the defendant below, to recover on a certain promissory note. The parties will be referred to in the same position they occupied in the court below. The plaintiff in error, as defendant, and the defendant in error as plaintiff. The note sued upon is as follows:

"$778.25. Jan. 21, 1912.

Feb. 10, 1913, providing entire house is completed satisfactory as per contract and specification, for work on house received, I, we, or either of us, jointly or severally, waiving grace and protest, promise to pay to the order of John Hamilton, seven hundred seventy-eight and 25/100 dollars, with interest from date at the rate of 8 per cent. per annum, payable annually until paid. The interest if not paid annually to become as principal and bear the same rate of interest, and in case this note is placed in the hands of an attorney for collection agree to pay ten per cent. additional for the collection of same. The indorsers, guarantors and assignors, severally waive presentment for payment, protest and notice of protest thereof, for nonpayment of this note and consent that the time of payment may be extended without notice.

Mrs. Lulu N. Kelly."

The plaintiff having alleged in his petition that he had performed all the conditions prescribed and contained in the note and contract sued upon, and that the same was due and unpaid, the defendant Mrs. Kelley filed her answer, and alleged that the plaintiff had failed to comply with the conditions in the note, and further set out the contract whereby plaintiff was to build the house, and that the plaintiff was required to furnish all material and to pay for the same; that the Sunny Pat Hardware Company filed a lien on the premises, which she was required to pay--the sum of $183. She set this out in her cross-petition, asking judgment for $183, and further set out the fact that the house was not properly built and constructed, and asked for damages in the sum of $1,500. The case was tried to the jury, and the jury returned a verdict in favor of the plaintiff and against the defendant in the sum of $769. From said judgment the defendant has appealed.

For reversal the defendant first contends that the court erred in receiving the note in evidence, until it had been shown that the special taxes had been paid thereon as provided by chapter 264, Session Laws 1917. It was admitted in the trial of the case, although the note disclosed on the face it was executed January 21, 1912, that the note was in fact executed January 25, 1913. That being true, the same, being a note for less...