National Bank of Commerce of Porum v. Jackson
| Decision Date | 22 January 1918 |
| Docket Number | 9264. |
| Citation | 170 P. 474,69 Okla. 93,1918 OK 44 |
| Parties | NATIONAL BANK OF COMMERCE OF PORUM v. JACKSON. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
Unless there is a total failure to allege some matter essential to the relief sought, the overruling of an objection to the introduction of evidence does not constitute reversible error, even though the allegations of the petition are incomplete, indefinite or conclusions of law.
If a chattel mortgage is irregularly foreclosed and the property sold to another than the mortgagee, the mortgagor may treat the action as a conversion of the property by the mortgagee and recover his damages therefor. The measure of his damages in such case being the excess of the actual value of the property at the time of sale over the mortgage debt.
Where a chattel mortgage provides that the chattels may be sold at public or private sale, with or without notice at any convenient place within the county, where the chattels are situated, a sale by the mortgagee of such chattels outside of said county constitutes an irregular foreclosure of such chattel mortgage.
Indorsements of payments upon a promissory note are presumed to have been made by the holder of the note or with his consent.
Commissioners' Opinion, Division No. 1. Error from District Court, Muskogee County; R. P. De Graffenried, Judge.
Action by W. H. Jackson against the National Bank of Commerce of Porum, Okl. Judgment for plaintiff, and defendant brings error. Affirmed.
Crump Bailey & Crump, of Muskogee, for plaintiff in error.
D. E Herschelman, of Porum, and White & Disney and Neff & Neff, all of Muskogee, for defendant in error.
The defendant in error, hereinafter styled plaintiff, commenced this action in the district court of Muskogee county against the plaintiff in error, hereinafter styled the defendant, setting up in his petition in a single count a cause of action in trover for the conversion of two teams of mules, and also a cause of action for the taking of and contracting for usurious interest. The defendant answered, denying generally the allegations of the petition, and pleading a judgment of the superior court of Muskogee county in an action wherein the defendant was plaintiff and the plaintiff was defendant as res adjudicata. It appears from the record that the defendant, in an action in the superior court of Muskogee county against the plaintiff in replevin, recovered judgment for the possession of the two teams of mules in controversy by virtue of a chattel mortgage given to secure the notes upon which plaintiff in the instant case alleged that usurious interest had been reserved and contracted, and that the plaintiff in that case in the superior court pleaded the usurious character of the transaction as a defense to the defendant's action of replevin. This cause was tried to a jury, and was treated by the court as an action for the conversion of the mules because of an unlawful and irregular foreclosure of the chattel mortgage under which the defendant claimed to be entitled to the possession of said mules. The plaintiff had judgment, and the defendant prosecutes this proceeding in error to reverse such judgment.
The first assignment of error argued in the brief of counsel for defendant complains that the court erred in overruling the objection of defendant to the introduction of any evidence by the plaintiff. Under this assignment the defendant argues at some length the insufficiency of the petition to support an action for the recovery of usury. We deem it unnecessary to set out in this opinion the petition of the plaintiff, but it is sufficient to say that the petition states facts constituting a cause of action in trover for the conversion of the two teams of mules. The defendant did not demur or otherwise object to the improper joinder of the two causes of action, but questions the petition's sufficiency solely by objection to the introduction of evidence. It is well established in this jurisdiction that objection to the introduction of evidence as a means of testing the sufficiency of a petition is not favored. Unless there is a total failure to allege some matter essential to the relief sought, even though the allegations are incomplete indefinite, or conclusions of law, the action of the trial court in overruling an objection to the introduction of evidence will not be disturbed. Sulsberger & Sons Co. v. Castleberry, 40 Okl. 613, 139 P. 837; ...
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