Mitchell v. Altus State Bank, Case Number: 1611

• Court: Supreme Court of Oklahoma
• Writing for the Court: SHARP, C.
• Citation: 32 Okla. 628,1912 OK 203,122 P. 666
• Parties: MITCHELL v. ALTUS STATE BANK.
• Docket Number: Case Number: 1611
• Decision Date: 12 March 1912

1912 OK 203
122 P. 666
32 Okla. 628

MITCHELL
v.
ALTUS STATE BANK.

Case Number: 1611

Supreme Court of Oklahoma

Decided: March 12, 1912

Syllabus

¶0 1. BILLS AND NOTES--Nonnegotiable Note-- Defenses. It is no defense to the maker of a nonnegotiable note that it was signed upon a mere representation or promise that the payee would procure a third person to sign it. The rule, however, as to such a note, is different where at the time of signing it is understood that the note was not to become a completed or binding obligation until signed by another, nor to be delivered until so signed.

2. APPEAL AND ERROR--Harmless Error--Instructions. Where it appears from the evidence that a verdict is so clearly right that, had it been different, the court should have set it aside, such verdict will not be disturbed merely for the reason that there is error found in the instructions.

Error from Jackson County Court; M. L. Hankins, Special Judge.
Action by the Altus State Bank against William Mitchell and R. L. James. Judgment for plaintiff, and defendant Mitchell appeals. Affirmed.

S. B. Garrett and T. M. Robinson, for plaintiff in error.

Johnson, Morrill & Riegel, for defendant in error.

SHARP, C.

¶1 The note sued on was made payable to J. E. Fowler and R. L. James, and by them indorsed to the Altus National Bank, which was afterwards succeeded by the defendant in error, Altus State Bank. The note was made at Altus, Okla., February 2, 1907, and was payable at the Altus National Bank, and provided for the payment of an attorney's fee of ten per cent. in addition to the amount of the note, if placed in the hands of an attorney for collection, and is therefore a nonnegotiable instrument. Cotton v. John Deere Plow Co., 14 Okla. 605, 78 P. 321; Clevenger v. Lewis, 20 Okla. 837, 95 P. 230, 16 L.R.A. (N. S.) 410, 16 Ann. Cas. 56; Clowers et al. v. Snowden et al., 21 Okla. 476, 96 P. 596.

¶2 Defendant, Mitchell, in his answer admitted the execution of the note sued on, but charged that the same was not intended to be executed by him alone, and was not to be delivered until signed by W. Z. Mitchell, and that said note was not to be deemed binding on said defendant, and the execution thereof was not to be completed until so signed, and that said W. Z. Mitchell never at any time signed said note; that all of the foregoing facts were well known to the Altus National Bank, the purchaser of said note from the payees, J.E. Fowler and R. L. James.

¶3 Among other instructions contained in the court's charge, to which plaintiff in error excepted and assigned as error, are the following:

"(4) You are further instructed that the terms of a written contract cannot be varied, changed, or altered by parol testimony, unless there is an allegation on the part of the party seeking to establish the change or alteration that the said written instrument was procured and signed through fraud or deception, or by a mutual mistake of both parties when the said instrument in question was executed.

"(5) You are further instructed that a written contract is evidence of itself, and the terms therein expressed supersede and take precedent of any oral agreement that may have taken place at any time prior to the execution of the said written instrument, and is conclusive evidence of its own terms at the time that the same was executed, unless the same is attacked upon the ground of fraud, deception, undue influence, or mutual mistake of the parties at the time of the execution of said contract.

"(6) You are therefore instructed that if you find from the testimony that in the execution of said note in question there was neither fraud nor deception nor undue influence, nor a mutual mistake of both parties, as to whom this note should be made payable, or as to whether or not the defendant in this case should be principal or surety, then and in that event you must find for the plaintiff according to the stipulations in the face of said note, but if you find from

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