Mulkey v. Morris

• Decision Date: 02 July 1957
• Docket Number: No. 36962,36962
• Citation: 1957 OK 168,313 P.2d 494
• Parties: James B. MULKEY and Farmers Exchange Bank, a Corporation, Plaintiffs in Error, v. Alvin J. MORRIS, Defendant in Error.
• Court: Oklahoma Supreme Court

Page 494

313 P.2d 494

1957 OK 168

James B. MULKEY and Farmers Exchange Bank, a Corporation Plaintiffs in Error, v. Alvin J. MORRIS, Defendant in Error.

No. 36962.

Supreme Court of Oklahoma.

July 2, 1957.

Syllabus by the Court

1. Where plaintiff advanced B a sum of money to purchase a defendant's interest in a livestock commission business said defendant and B then owned as partners, and B purported to repay part of said sum by delivering plaintiff a check; and thereafter plaintiff sued defendant and the bank, on which the check was written, to recover the sum of the advancement from said individual defendant, and the amount of the check from the defendant bank, on the theory that defendant's alleged misrepresentation had caused his advancement and loss of the amount thereof, and that the bank was also liable in the amount of the check; Evidence examined and Held: The trial court correctly overruled the individual defendant's motion for a directed verdict, but erroneously overruled such a motion made by the defendant bank.

2. Where, in said action, plaintiff also sought to establish liability against the bank as garnishee of the principal defendant, and the bank's garnishee answer denying it had any of said defendant's funds, or property, in its possession, was filed out of time and without leave of court having been first obtained, but plaintiff joined issue on said answer by replying thereto with a general denial, and made no objection concerning the time of the answer's filing until after judgment was entered for him against the principal defendant, when he then moved for judgment against the garnishee; Held: By replying to the merits of the garnishee answer, without mention of its date of filing, until after entry of the principal judgment, plaintiff waived any objection he may have had to its late filing.

3. Where, in the trial of a cause, there is no objection, or ruling made with reference thereto, or the appellant's objection has been sustained, as soon as made, to alleged improper conduct of opposing counsel, there is no basis for reversal of the judgment thereafter entered therein.

4. Where the trial court's instructions, as a whole and in a general way, submitted the material issues to the jury, a judgment in accord with a verdict, within the issues and supported by sufficient evidence, will not be reversed for abstract, technical and ineffective errors in said instructions or because they were not as complete, or detailed as they might have been, in the absence of the submission of, or the trial court's refusal to give, other requested instructions.

Appeal from the District Court of Pushmataha County; Howard Phillips, Judge.

Action by plaintiff to recover against the defendant Mulkey and the defendant Farmers' Exchange Bank of Antlers, Oklahoma, as the latter's garnishee, the sum of $8,000 he allegedly advanced for the purchase by one Bolin, of the defendant Mulkey's interest in a livestock business then owned by Bolin and Mulkey, and for additional recovery against said bank of the amount of a dishonored check for $5,000 that Bolin had given plaintiff by way of purported, partial repayment of the $8,000. From a verdict in favor of plaintiff against the defendants, the latter appeal; and plaintiff cross-appeals from a judgment denying him recovery against the bank, as garnishee. Affirmed in part and reversed in part.

Gomer Smith, Jr., Oklahoma City, for plaintiff in error James R. Mulkey.

Lee Welch, Antlers, for plaintiff in error Farmers' Exchange Bank of Antlers, Okl.

Joe Stamper, and C. E. Dudley, Antlers, and Edwin W. Dudley, Madill, for defendant in error.

BLACKBIRD, Justice.

The parties to this appeal appear in reverse order to their appearance in the trial court, and will be referred to as 'plaintiff' and 'defendants', as they appeared there, except where otherwise designated.

Involved herein is plaintiff's recovery of $8,000 he advanced to one L. W. Bolin for Bolin's purchase of the interest of his partner, the defendant James R. Mulkey, in a livestock auction sales business at Antlers, Oklahoma. There is no conflict in the evidence concerning most of the facts out of which the controversy arose. In May, 1951, Bolin and Mulkey, both of whom then resided at Mercedes, Texas, came to Antlers and purchased the business from plaintiff for $8,000, paying $5,000 thereof in cash, and giving their promissory note, due October 1st of that year, for the remaining $3,000. Under other terms of the sale, plaintiff continued his ownership of the sales barn, pens and lots in which the business was operated, and received a monthly rental therefor from these purchasers, but Bolin and Mulkey had the option of buying these premises and real estate for another $17,000, less the existing mortgage indebtedness thereon.

Shortly thereafter Bolin and Mulkey formally associated themselves as partners in the operation of said business, under the name of B & M Livestock Commission Company. Then Mulkey left Bolin in active charge of the business, with authority to sign checks drawn against the partnership bank account in the defendant bank; and returned to his regular occupation of farming at his home in Texas. Within a short time, either late May or early June, 1951, Mulkey, on one of his periodic trips back to Antlers, learned that Bolin was drawing checks on the partnership account in the defendant bank for purposes not connected with the business, and, as a result thereof, the partners (apparently after a conference between themselves) instructed said bank (which Miss Jeffers testified she thought occurred on the morning of June 12th) that thenceforth it was to honor for payment out of said partnership's account, only checks drawn and signed for said company by its chief bookkeeper, Miss Mary Jeffers, who apparently acted also as a sort of office manager. On June 14, 1951, it was necessary for Mulkey to advance the B & M Company $4,000 out of his private funds in a Mercedes, Texas, bank, which said advancement was deposited to said company's credit in the defendant bank to keep its account there from being overdrawn. About the same time Mulkey instituted District Court Cause No. 7214 against Bolin and the defendant bank. The exact nature of this action does not appear except that therein some sort of restraining order and injunction against the bank was applied for. Whether as a consequence of the filing of this action, or not, Bolin, on June 13, 1951, deposited $6,500 in the B & M Company's account in the defendant bank, in repayment, partially at least, of said company's funds he had used for private purposes, as aforesaid. That afternoon Miss Jeffers issued Mulkey a check on said company's account reimbursing him for the $4,000 personal check that he had that morning deposited in the company's account to avoid overdrafts (as above indicated). Also, on the same day, Mulkey and Bolin signed an agreement purporting to dissolve the partnership, reciting that they were to complete their 'transaction' (exercise their option to buy the auction sales barn premises as aforesaid) with Morris the next day, June 14th, and agreeing that on the latter date, either would sell his interest to the other. Under its terms, Bolin could purchase Mulkey's interest for $8,000. That night (June 13, 1951) Bolin asked plaintiff to lend him the $8,000 necessary to purchase Mulkey's interest, but plaintiff refused, notwithstanding Bolin's telling him that the B & M Company then had $12,000 in the bank. The next day, Morris met Bolin and Mulkey at Attorney S's office ostensibly to accomplish whatever was necessary in the exercise of their aforesaid option to buy the sales barn premises, and Bolin and Mulkey, in Morris' presence, engaged in a heated discussion. From what he heard of it, Morris got the impression they were arguing over which one was going to buy the other's interest. When, during the course of the meeting, Bolin renewed his request of Morris to lend him the necessary $8,000 to buy Mulkey's interest, and Mulkey corroborated Bolin's representation of the night before, that the business had $12,000 in the bank and also stated that, of said balance, $9,000 was 'unencumbered', and that if Bolin bought his interest he would become the owner of all the company's assets and property, plaintiff then consented to advance Bolin the $8,000. According to plaintiff's testimony, it appeared to him that he would get his 'money back in 30 minutes * * *' (after Bolin's purchase of Mulkey's interest was complete and Bolin got the business all in his own name). Thereupon Mulkey and Bolin had Attorney S draw them a new 'Agreement To Dissolve Partnership', which they both signed in Morris' presence and which purported to assign to Bolin, Mulkey's interest in the partnership's previous contract with plaintiff containing the option for purchase of the sales barn, and which, among other things, recited that Bolin accepted assignment thereunder of Mulkey's interest in the 'moneys, properties, contracts, chattels, and good will' of the partnership and that he agreed to assume all of its indebtedness and save Mulkey harmless from payment of any part thereof. After this was done, plaintiff wrote Bolin a personal check in the amount of $8,000 on an Atoka, Oklahoma, bank, but upon Mulkey's then demanding cash, or its equivalent, plaintiff accompanied him and Bolin to Antlers' First National Bank, where Bolin deposited Morris' check to his own personal account there, and thereupon, by writing his own check on said account, Bolin purchased, and handed to Mulkey, a cashier's check made payable to the latter in the amount of $8,000. Mulkey then left the Bank and Bolin drove Morris to the sales barn in his auto, and gave him a check for $5,000. This check purpoted to be drawn on the B & M Company's account at the defendant bank, but was signed only by Bolin. Later, 'soon after one o'clock (P. M.)', when plaintiff presented said check to ...