Newton v. Paul

• Citation: 1950 OK 279,224 P.2d 265,203 Okla. 556
• Decision Date: 14 November 1950
• Docket Number: No. 33917,33917
• Parties: NEWTON v. PAUL.
• Court: Oklahoma Supreme Court

Page 265

224 P.2d 265

203 Okla. 556

NEWTON v. PAUL.

No. 33917.

Supreme Court of Oklahoma.

Nov. 14, 1950.

Syllabus by the Court.

1. Where there is any evidence reasonably tending to support the verdict of the jury returned under proper instructions in a law action a judgment based thereon will not be disturbed by this court.

2. A defendant cannot take advantage of the error of the trial court in giving an instruction which has the effect of placing a greater burden on plaintiff than required.

3. Incompetent evidence not shown to have probably been prejudicial will be disregarded as harmless.

4. A suit to recover a money judgment against the maker of a lost or stolen check by one who cashed same for payee is a law action and the necessary proof to sustain such action need be established only by a preponderance of the evidence.

W. R. Banker, A. Camp Bonds, Muskogee, for plaintiff in error.

Kay Wilson, Jr., Muskogee, for defendant in error.

ARNOLD, Vice Chief Justice.

From the pleadings and the evidence it reasonably appears that on July 13, 1946, Joe Paul, or one of the employees in his place of business, cashed a check for one J. W. Parks, payee, the check having been issued by W. M. Newton, doing business as the Oklahoma Sheet Metal and Boiler Works. It was customary in Paul's place of business to place all of a day's receipts, including cash, checks, and charge tickets, in a small bag which was placed in his safe. On July 14, 1946, Paul's place of business was burglarized and the bag containing the previous day's receipts was taken. The 13th and 14th of July that year fell on Saturday and Sunday. On Monday, the 15th of July, Paul notified Newton of the loss of the check and requested that he stop payment at the bank. Payment was stopped but there is no positive testimony as to who made the stop order as the official at the bank who took the stop order did so over the telephone and was unable to identify the voice. Paul made demand on Newton for payment of the check and tendered to him an indemnity bond to protect him against reappearance of the check in the hands of an innocent holder. Payment was refused, Newton denying that he ever issued such a check or stopped payment thereon. Parks, the payee, was regularly employed by Newton at a salary of $42 per week, the amount here involved, and Paul had frequently cashed these salary checks for Parks prior to the one here involved.

There was a verdict and judgment in favor of plaintiff for the amount sued for with interest at the rate of six per cent until paid. For reversal of the judgment Newton alleges that the court committed prejudicial error in admitting certain testimony of J. W. Parks, certain testimony of Marion Hayes, the head bookkeeper for the bank on which the check was drawn, and in giving instructions numbered 5 and 7.

The testimony of Parks, the payee, which is assigned as error was his statement brought out by plaintiff that Paul told him of the loss of the check. If this was error, as claimed, it was harmless for the reason that Newton while upon the stand in his own behalf testified that Paul made the same statement to him and that Paul tendered an indemnity bond to protect him from loss if he paid the amount of the check.

Hayes's testimony which is relied upon as being prejudicial was his statement that he received an order over the phone to stop payment on this check and that he did put a stop payment order on the check. He did not identify the person directing the stop order, and said that he did not recognize the voice over the phone. We are unable to see where his act in stopping payment on the check at the bank was prejudicial to the defendant in any way since he did not seek to place responsibility for the order on defendant. Newton and Parks both testified that the check was not issued on July 13th. In this connection they said that on the...