El Kouri v. Toma
| Decision Date | 01 June 1948 |
| Docket Number | 32785. |
| Citation | 194 P.2d 872,200 Okla. 354,1948 OK 131 |
| Parties | EL KOURI v. TOMA. |
| Court | Oklahoma Supreme Court |
Appeal from District Court, Jackson County; Weldon Ferris, Judge.
Action by J. E. Toma against Gus El Kouri and Altus National Bank garnishee, for money had and received on a check signed by plaintiff and made payable to defendant, which plaintiff claims was improperly cashed, the proceeds of which were in the garnishee bank. From an adverse judgment, defendant appeals.
Reversed for a new trial.
Syllabus by the Court.
1. An instruction placing upon the defendant the burden of disproving facts alleged in plaintiff's petition and which are material to his cause of action is erroneous.
2. The instructions as a whole must be consistent and harmonious and, where two instructions contain inconsistent propositions, the cause will ordinarily be reversed, for the reason that the court is unable to tell which the jury followed and which they ignored.
3. Record examined and held that the giving of conflicting and erroneous instructions on the burden of proof constituted reversible error.
L. B. Yates, of Altus, for plaintiff in error.
Frank Petree, of Altus, and Hughes & Hughes, of Hobart, for defendant in error.
During the early part of 1940, the plaintiff owned a grocery store in the city of Altus. He sold the store and fixtures to Joe El Kouri, father of the defendant.
The plaintiff alleged and offered evidence tending to prove that the agreement for sale was made about March 19, 1940, at which time Joe El Kouri, who is the cousin of plaintiff delivered to plaintiff two checks issued to Joe El Kouri, by third parties and endorsed by him; that these checks amounted to $875; that the deal was to be closed on March 31, when the inventory was to be taken and the exact amount of the purchase price was to be determined; that for fear that something might happen to prevent the sale from being consummated, Joe El Kouri requested the plaintiff to give him a check for $875 that would serve as a receipt and would be destroyed if the sale was consummated; that at the request of Joe El Kouri, the check was made payable to Gus El Kouri, the defendant, who was the eighteen-year old son of Joe El Kouri; that the inventory was made on Sunday, March 31, 1940, and showed the value of the stock of groceries to be $6,311.53; that the inventory introduced in evidence by plaintiff showed a credit of $875, represented by the two checks, credit being given on March 31, 1940; that Joe El Kouri had difficulty making the payments on the sale and that plaintiff sued him several times in order to collect the delinquent payments; that sometime after the sale was consummated, plaintiff requested Joe El Kouri to deliver back to him the $875 check, which had been given as a receipt, but Joe El Kouri advised him that the check had been destroyed; that one of the suits by plaintiff against Joe El Kouri was tried in March, 1943; that on March 19, 1943, Gus El Kouri, the defendant, deposited the check for $875 in the garnishee bank and in due course it was paid by the First National Bank of Snyder, Oklahoma, on which it was drawn. On April 1, 1943, and as soon as the plaintiff discovered that the check had been cashed, this suit was filed.
The defendant, Gus El Kouri, alleged and offered the evidence of himself and his father to the effect that plaintiff sold the store to his father during the latter part of February, 1940, and on March 19, 1940, while he was working in his father's said store in Altus, he cashed said $875 check for the plaintiff and paid the sum of $875 of his own money to plaintiff.
It will thus be seen that the issue of the consideration and purpose of the check made by the pleadings and evidence was sharply drawn. The jury found this issue in favor of plaintiff, and judgment was rendered accordingly.
The court gave two instructions on the question of the burden of proof. By instruction No. 1, the court advised the jury that the burden of proof was on the plaintiff to establish by a fair preponderance of the evidence the material allegations of his petition. But by instruction No. 3 the court instructed the jury as follows:
The defendant duly excepted to instruction No. 3, and the only question argued by him for reversal in that, by the giving of this instruction, the court committed reversible error. In support of this argument, appellant cites Eagle- Picher Mining & Smelting Co. v. Layton, 182 Okl. 405, 77 P.2d 1137, and other authorities.
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