McDonald v. Mulkey

• Decision Date: 23 December 1924
• Docket Number: 1091
• Citation: 231 P. 662,32 Wyo. 144
• Parties: McDONALD v. MULKEY [*]
• Court: Wyoming Supreme Court

231 P. 662

32 Wyo. 144

McDONALD v. MULKEY ^[*]

No. 1091

Supreme Court of Wyoming

December 23, 1924

APPEAL from District Court, Goshen County; WILLIAM C. MENTZER Judge.

Action by John T. McDonald against H. G. Mulkey. Judgment for Plaintiff, and Defendant appeals.

Affirmed.

C. A Paige and Marion A. Kline for Appellant.

Where there is doubt as to whether a representation is an expression of opinion, or the statement of a fact, it is a question for the jury. Chase v. Boughton, 93 Mich 285, 54 N.W. 44; Crane v. Elder, 48 Kan. 259, 29 P. 151; Stockton et al v. Hind et al (Cal.) 196 P. 122; Horowitz v. Kuehl (Wash.) 200 P. 571; Hoptowit v. Brown (Wash.) 198 P. 370; Pacific Gas & Electric Co. v. Alamanzo, (Ariz.) 198 P. 457; Olston v. Oregon Water Power & Ry. Co. (Ore.) 96 P. 1095; The court erred in permitting counsel for Plaintiff to reopen the case or introduce testimony different from testimony formerly given as to the ownership of the note. The court erred in sustaining the motion of plaintiff for a directed verdict. Where there is any evidence to support the allegations of the pleadings, it is error for the court to direct a verdict. Calkins v. Coal Co. 25 Wyo. 409; Boswell v. Bank, 16 Wyo. 161; Riner v. Ins. Co. 9 Wyo. 181. Parties are estopped to controvert allegations or admissions in their own pleadings 31 Cyc. 87. Court proceedings must be orderly Wiggins v. State (Wyo.) 206 P. 373. The amendment of plaintiff's reply was a departure from the allegations of his petition; and not justified by the provisions of Sec. 5707 C. S. An application to amend is addressed to the sound discretion of the court; Barrett v. Shipley, 206 P. 231. Where allowed, it cannot be considered on appeal, 31 Cyc. 452. It is error to permit an amendment to conform to facts illegally proven, 31 Cyc. 452, 1 Ency. P&P, 585; Guerrin v. Ins. Co. 46 N.W. 138. The court erred in permitting the amendment. Bank v. Rogers, 61 N.Y.S. 155; Moore v. Co. (N. Mex.) 113 P. 828; Brown v. Co. (Ia.) 150 N.W. 1057; Bransford v. Ins. Co. (Colo.) 39 P. 419. According to the reply as amended, Cheyenne State Bank and not the Plaintiff was the owner and holder of the notes until August 10th, 1920, and Plaintiff did not purchase them before maturity. There was no evidence to support a directed verdict for plaintiff; the notes were non-negotiable. Plaintiff did not have a right of action at the commencement of his suit. Titus v. Gunn, (N. J.) 55 A. 735; Hoyt v. Wilkinson, (Mass.) 10 Pick 31; Kirchner v. Bd. (Ia.) 118 N.W. 53; Fults v. Munro (N. Y.) 95 N.E. 25; R. R. Co. v. Maurel (Fla.) 56 So. 670. The pleadings and proofs do not agree hence the judgment cannot stand. Angelina Co. v. Hines, 184 S.W. 596, Sec. 3984 C. S. does not apply. A provision authorizing confession of judgment and recovery of attorney's fees at any time after maturity date destroys negotiability, Wis. Co. v. Babler, 91 N.W. 678; Brewing Co. v. McKittrick (Mich.) 48 N.W. 1086; Kampton v. Co. (Ida.) 94 P. 1039; Western Co. v. Burnett (Ore.) 161 P. 384; Bank v. Carter (Ia.) 123 N.W. 237. Consent to extension without notice and waiver of protest destroys negotiability; Bank v. Nolan (Ida.) 93 P. 508; Bank v. Heslet (Kan.) 113 P. 1052; Manhard v. Bank (Ia.) 165 N.W. 185; Woodbury v. Roberts (Ia.) 13 N.W. 312; Lamb v. Storey (Mich.) 8 N.W. 87, 3934 C. S. Bank v. Purdy, 22 N.W. 93; Chicago Bank v. Trust Co. (Ill.) 60 N.E. 586, Sec. 5148 C. S. nullified the notes in the hands of the bank; Vannatta v. State Bank 9 (0) 27; this section was adopted from Ohio and its interpretation in that state is of binding force here; II Lewis Suth. Stat. Cons. 404, see also Gause v. Com. T. Co. 196 N.Y. 134; Wald v. Wheelon (N. D.) 147 N.W. 402. The verdict and judgment are contrary to the law and the evidence. Plaintiff was not entitled to amend his pleadings and get back into court after he had sworn himself out of court; qualities of negotiability are fixed and cannot be enlarged upon mere considerations of logic or even equity; Pitman v. Walker, 203 P. 741.

Kinkead, Ellery and Henderson for Respondent.

No error was committed in permitting Plaintiff to re-open and submit further evidence. Error is frequently adjudged for a refusal to do so; Liberty Works v. Gertz, 184 N.Y.S. 470; Helling v. Wright (Calif.) 156 P. 365-368; Covert v. Town (Ia.) 149 N.W. 67; Bridger v. Bank, (Ga.) 115 A. S. R. 118; Brigs v. Ins. Co. 214 (Ill. App.) 181; Reynolds v. Ry. Co. 113 N.E. 413. Permission to recall the Plaintiff was within the discretion of the court; Dowler v. Co. Ann. Cas. 1914 C. 341; Jones v. Co. (Ga.) 99 S.E. 388; Piehl v. Piehl (Mich.) 101, N. W. 628; Chicago Co. v. Walsh, 136 Ill.App. 73; No objections on the ground of variance were made at the trial, and general objections were insufficient and a waiver of other grounds; Remington v. Machamer, 186 N.W. 32; Henderson v. Dreyfus, 191 P. 442; Barney v. Morenci, 172 N.W. 501; Henderson v. Coleman 19 Wyo. 183; Reynold v. Morton 22 Wyo. 174; D. L. R. Co. v. Produce Co. (8th Cir.) 219 F. 155; Empire Co. v. Lanning (Colo.) 113 P. 491; A motion to strike must be based on an objection previously stated and waives other grounds; R. R. Co. v. Blaylock (Ann. Cas. 1917 A. 563; Flanagan v. Co. 127 A. S. R. 315; Pinto v. Seely, 135 P. 43. Permission to amend is discretionary and not reviewable; Bassinger v. Weiss, (Wyo.) 195 P. 527; Steere v. Gingery (S. D.) 123, N. W. 863; Mansfield v. Mallory (Ia.) 118 N.W. 291; Stevens v. Vermillion (Kans.) 170 P. 807; Gould v. Gould (Wash.) 169 P. 324; Finnegan v. Ulmer (Nev.) 104, Pac. 17; the amendment permitted to conform to proofs was proper; Foxwell v. Justice (Ky.) 231 S.W. 509; both parties having moved for a directed verdict submitted the whole case to the trial court, and its findings take the place of a verdict of the jury. Sneider v. Big Horn Milling Co. (Wyo.) 200 P. 1011; McGhee v. Kirsher (Colo.) 204 P. 891; Moore v. Crittenden, 204 P. 1035; the answer does not allege fraud and is not sufficient; Robertson v. Frey (Ore.) 141 P. 128; Outcault Co. v. Buell (Ore.) 141 P. 1020; 12 R. C. L. 421; Hartford Co. v. Hope 81 N.E. 595. It does not state wherein representations were false. 12 R. C. L. 420; Specht v. Allen, 6 P. 494; Bank v. Swan 3 (Wyo.) 366. It does not allege that defendant was misled, 20 CYC 102; Andrews v. Co. 130 U.S. 643. There being no defense to the note it was immaterial for plaintiff was a holder in due course, Stevens v. Vermillion, (Kan.) 200 P. 277; Kahn v. Co. 4 (Wyo.) 419. Credibility of witnesses was for the court, McCulley v. McArthur, (Cal.) 201 P. 323; Bessinger v. Weiss (Wyo.) 195, Pac. 527, Sec. 906 U. S. R. S. Controls as to certified records from other states, Gold v. Gordon (Mont.) 95 P. 995. Surety Co. v. Love, 178 N.W. 917; Ins. Co. v. Stevens, 71 F. 258; Wilcox v. Bergnan (Minn.) 104 N.W. 955; Bliler v. Boswell 9 (Wyo.) 57. This section was not complied with, and it may be assumed that the evidence was disregarded, 4 C. J. 99; Young v. Strickland 17 Wyo. 526. The allegation that the plaintiff was a holder in due course was not essential 3984 C. S., 5676 C. S.; Bank v. Bank 24 Wyo. 423, 8 C. J. 959, 2 R. C. L. 994. A judgment note is negotiable, 8 C. J. 1007; Fisher Co. v. Bank, 54 P. 124; Kreig v. Bank (Ind.) 111 N.E. 31. Waivers by surety endorsers and guarantors did not effect negotiability; Bank v. Buttery, N. D. 116 N.W. 341; Bank v. Kinney, 483 S.W. 368; Bank v. Laukonen (Colo.) 121 P. 947; Bank v. White (Tenn.) 191 S.W. 332 nor waiver of protest, 8 C. J. 129. The alleged violation of 5146 C. S. did not defeat collection of note; Union Co. v. Bank 96 U.S. 645; Bank v. Bank 282 F. 73, 7 C. J. 713.

KIMBALL, Justice. POTTER, Ch. J., and BLUME, J., concur.

OPINION

KIMBALL, Justice.

This is a direct appeal from a judgment entered on a directed verdict. The parties will be called plaintiff and defendant as in the court below.

The defendant (appellant) was sued as the maker of three promissory notes, each for $ 1250, payable to S. L. Vance, one dated July 31, 1919, due in one year, the others dated August 16, 1919, due in ten months. The notes are endorsed in blank by the payee. The action was commenced August 19, 1920, the plaintiff in his petition alleging, among other things, that he was then "the bona fide owner and holder in due course" of said notes, and the "purchaser thereof for value and before maturity." The defendant answered that he was induced to make the notes by the fraud of the payee. The answer denied that the notes "were endorsed by said S. L. Vance to the plaintiff;" that they "were negotiated for value prior to the maturity thereof;" that "plaintiff is now or ever has been a bona fide owner and holder in due course" of said notes; and that "plaintiff was the purchaser thereof for value and before maturity." The answer alleges further that the notes were placed for collection with the Cheyenne State Bank of which the plaintiff is the vice-president and manager, and that at the time the bank received the notes the plaintiff knew of the fraud practiced by Vance in obtaining them. The answer also recited that prior to the maturity of the notes the defendant was notified by the bank that it was the owner and holder thereof; that defendant then inquired about the notes at the bank and was again informed that the bank was the owner and holder of them, "when as a matter of fact said notes were merely left there for collection, and said Cheyenne State Bank and the plaintiff herein are merely the agents for a third party; that plaintiff is not the real party in interest and that therefore under the laws of this state, he is not entitled to maintain or carry on the suit; that said plaintiff never paid any consideration for said notes, or had any pecuniary interest therein."

The reply denied the fraud. It...