Md. Cas. Co. v. Dearmon
| Decision Date | 26 January 1937 |
| Docket Number | Case Number: 26370 |
| Citation | 179 Okla. 60,64 P.2d 719,1937 OK 45 |
| Parties | MARYLAND CASUALTY CO. v. DeARMON. |
| Court | Oklahoma Supreme Court |
¶0 1. CONTRACTS - Contract Void as Being Contrary to Public Policy not Susceptible of Ratification.
If the consideration for a contract is illegal by reason of being contrary to public policy, such contract is void and not voidable and is not susceptible of ratification.
2. TRIAL - Motion to Direct Verdict - Determination.
The question presented to a trial court on a motion to direct a verdict is whether, admitting the truth of all the evidence that has been given in favor of the party against whom the action is contemplated, together with such inferences and conclusions as may be reasonably drawn therefrom, there is enough competent evidence to reasonably sustain a verdict should the jury find in accordance, therewith.
3. SAME - Directed Verdict Improper Where Necessary to Weigh Evidence to Determine Preponderance.
The trial court should not direct a verdict where it is necessary to weigh the evidence to determine where the preponderance lies.
Appeal from District Court, Pottawatomie County; Leroy G. Cooper. Judge.
Action for money judgment by Maryland Casualty Company against R.I. DeArmon. Judgment for defendant, and plaintiff appeals. Affirmed.
Chas. B. Hickok, for plaintiff in error.
John T. Levergood, for defendant in error.
¶1 This is an appeal from a judgment of the district court of Pottawatomie county. The parties occupy the same positions here as in the trial court and will be referred to as plaintiff and defendant.
¶2 Plaintiff in its petition alleged that it was surety on the bond of one Humphries, who was related by consanguinity or affinity to the defendant; that said Humphries defaulted in his accounts with his employer and that plaintiff had paid the resulting shortage in the sum of $802.46, and that in consideration of plaintiff's forbearance to sue the said Humphries the defendant had executed an assignment of his wages whereby he promised to repay the plaintiff in weekly installments the sum which plaintiff had paid for the said Humphries; and alleged, further, that the defendant had made payments under said contract which aggregated the sum of $120 and had thereafter refused to make any further payments. Wherefore plaintiff prayed judgment for the balance of $682.46, with interest thereon. The defendant answered admitting that he had executed the assignment of his wages and that he had paid $120 thereon, but alleged that he had done so under duress and in order to prevent a criminal prosecution of Humphries, who was his brother-in-law, and by way of cross-claim he asked judgment against the plaintiff for the money which he had paid on the contract. Reply of the plaintiff specifically denied duress in the procurement of the said assignment, and further pleaded that the defendant had made payments on said contract and that he had thereby ratified and confirmed said agreement and was as a result thereof estopped to plead duress as ground for an avoidance of said contract. Upon the issues thus framed the cause was tried to a jury. At the conclusion of defendant's evidence and again at the close of the entire case, the plaintiff moved for a directed verdict in his favor. These were overruled and the cause was submitted to the jury. The jury returned a verdict in favor of defendant. Plaintiff appeals from the judgment rendered on the verdict and the order overruling its motion for a new trial.
¶3 In its petition in error plaintiff assigns six specifications of error and in its brief states that they are all directed at the same point - whether the defendant ratified and confirmed the transaction entered into between the plaintiff and defendant when the assignment of wages was executed. Plaintiff insists that the trial court should have sustained its motion for directed verdict. Plaintiff does not argue the absence of any evidence to show that the contract was induced by duress, but contends that the only conclusion that can be properly drawn from the evidence and the only rule of law that can be applied is that the defendant ratified and confirmed the transaction by making subsequent payments thereon. In support of this position plaintiff cites and relies entirely upon the cases of Eash v. Pence, 121 Okla. 7, 246 P. 1091, and Brummett v. McGowan, 165 Okla. 59, 24 P.2d 980. The above cases are authority for the rule that where a promissory note has been...
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