Orchid Shoppe, Inc. v. Sherwood Shoe Co.

• Decision Date: 10 November 1936
• Docket Number: Case Number: 26771
• Parties: ORCHID SHOPPE, Inc. v. SHERWOOD SHOE CO.
• Court: Oklahoma Supreme Court

1936 OK 715

63 P.2d 739

178 Okla. 177

ORCHID SHOPPE, Inc. v. SHERWOOD SHOE CO.

Case Number: 26771

Supreme Court of Oklahoma

Decided: November 10, 1936

Syllabus

¶0 1. PLEADING - Action on Verified Account - Account Taken as True in Absence of Verified Denial.

In an action to recover on account for goods, wares, and merchandise sold and delivered by plaintiff to defendant, and attached to the petition is an itemized, verified statement of the account sued on, and the correctness of the account is specifically alleged in said petition, same shall be taken as true, unless the denial of same be verified by the affidavit of the defendant, his agent or attorney.

2. PLEADING - Questions Presented by Motion for Judgment on Pleadings.

A motion for judgment on the pleadings presents two questions to the court: (1) Is there any issue of material fact? And if no issue of material fact is presented by the pleadings. (2) which party is entitled to judgment.

3. SAME - Motion for Judgment on Pleadings in Substance Both Motion and Demurrer.

A motion for judgment on the pleadings is in the nature of a demurrer, and it is in substance both a motion and demurrer; being a demurrer because it attacks the sufficiency of the pleadings; and it is a motion for the reason that it is an application for an order for a judgment. Like a demurrer, it admits the truth of all well pleaded facts in the pleading of the opposing party, and the court will consider the whole record and will give judgment for the party who, on the whole record, is entitled thereto.

Appeal from District Court, Tillman County; F. Hiner Dale, Assigned Judge.

Action by Sherwood Shoe Company, against the Orchid Shoppe, Inc. Judgment for plaintiff, and defendant appeals. Affirmed.

R.L. Christian, for plaintiff in error.

W.G. Roe and Harrison Roe, for defendant in error.

PER CURIAM.

¶1 This action was commenced in the district court of Tillman county, Okla., by the Sherwood Shoe Company, a corporation, plaintiff, against the Orchid Shoppe, Inc., a corporation, defendant, and is a suit on account, for goods, wares and merchandise sold and delivered by the plaintiff to the defendant.

¶2 Petition was filed on the 13th day of November, 1934, and attached to the petition and made a part thereof is as itemized, verified statement of the account sued upon. The petition alleges the sale and delivery of certain goods, wares, and merchandise from the plaintiff to the defendant; specifically alleges the correctness of said account, and prays judgment for the sum of $263.03, with interest thereon at the rate of 6 per cent. per annum from June 1, 1934, and the costs of the action. The petition shows that the goods were sold and delivered between the 6th day of March, 1934, and the 23rd day of April, 1934.

¶3 The defendant filed motion to quash summons, motion to make the petition more definite and certain, and demurrer to the petition, all of which were overruled by the trial court, and on the 25th day of April, 1935, filed an unverified general denial to the plaintiff's petition. On May 14, 1935, plaintiff filed motion for judgment on the pleadings. On the same day the cause came on for trial, both parties being present by their attorneys, and announced ready for trial, and upon consideration of the plaintiff's motion for judgment on the pleadings, same was by the court sustained, and judgment rendered for the plaintiff as prayed for.

¶4 On May 15, 1935, defendant filed its motion for new trial, which was on the 17th day of May, 1935, by the court overruled, the defendant saving its exceptions to the rulings, order and judgment of the court, and brings the case here for review. The defendant below is the plaintiff in error herein, and the plaintiff in the trial court is the defendant in error herein.

¶5 The plaintiff in error set out four assignments of error, all of which may be considered in one general proposition set forth in brief of plaintiff in error, as follows:

"The trial court committed error in sustaining plaintiff's motion for judgment on the pleadings, on plaintiff's verified petition, an unverified general denial of defendant being on file, without first striking said general denial and without the introduction of any testimony to sustain its, plaintiff's, petition."

¶6 Disposing of the one general proposition as set forth by plaintiff in error, as above quoted, disposes of every issue before this court. As we view it, the parties have brought themselves squarely within the purview of section 220, O. S. 1931, which is as follows:

"In all actions, allegations of the execution of written instruments and indorsements thereon, of the existence of a corporation or partnership, or of any appointment of authority, or the correctness of any account duly verified by the affidavit of the party, his agent or attorney, shall be taken as true unless the denial of the same be verified by the affidavit of the party, his agent or attorney."

¶7 This section of the statutes is controlling, and is mandatory upon this court. The plaintiff has pleaded an itemized, verified statement of account, and has specifically alleged in its petition the correctness thereof. To this petition the defendant denied generally the allegations of the petition, which general denial was not verified by the affidavit of the party, his agent or attorney. Not having denied under oath the correctness of the account, same is admitted.

¶8 The question then arises, Does an unverified, general denial raise any question to be tried by the trial court, where the only matter presented in plaintiff's petition was the sale and delivery of merchandise and the nonpayment of said account.

¶9 Plaintiff in error insists that even though the unverified general denial admits the correctness of the account sued on, yet it is sufficient to put in issue the question of sale and delivery of the goods, wares, and merchandise from the plaintiff to the defendant, and therefore the trial court committed error in sustaining the motion for judgment on the pleadings; there being a question of fact to be tried by the trial court, that of sale and delivery. Plaintiff in error cites in support of its contention the following cases to wit: Doughty v. Funk, 24 Okla. 312, 103 P. 634, and Hastings v. Hugo Nat. Bank, 81 Okla. 189, 197 P. 457.

¶10 In each of the cases cited by plaintiff in error, supra, were questions other than the execution of the instruments sued on, which questions were put in issue by the unverified, general denials. In the case of Doughty v. Funk, supra, this court said:

"The copy of the note, filed as an exhibit to the petition, shows that it was specially indorsed by the payee to the Union Trust Company. Suit thereon is brought by plaintiff as receiver of that company. Nothing appears by way of indorsement or otherwise to indicate the ownership of plaintiff therein, or that the same passed under his receivership. He alleges that 'he is the owner and holder of said promissory note as receiver.' This is denied in the answer. In an action on an instrument thus specially indorsed, brought by one other than the indorsee, who alleges that he is the owner thereof, an answer which alleges that plaintiff is not the owner puts in issue his title, and that too without being verified as required by said section."

¶11 In the above case this court cited the following cases from the Supreme Court of Kansas, as follows: Washington v. Hobart, 17 Kan. 275; Pattie v. Wilson, 25 Kan. 227; Walker v. Land Title & Trust Co., 59 Kan. 777.

¶12 These cases all support the theory announced in the case of Doughty v. Funk, supra, and the Supreme Court of Kansas said in the case of Pattie v. Wilson, supra, as follows:

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