Palestine Drug Co. v. Boggs
| Decision Date | 19 December 1933 |
| Docket Number | Case Number: 21632 |
| Citation | 167 Okla. 260,1933 OK 676,29 P.2d 56 |
| Parties | PALESTINE DRUG CO. v. BOGGS et al. |
| Court | Oklahoma Supreme Court |
¶0 1. Evidence--Bills and Notes--Right of Maker to Prove Contemporaneous Oral Agreement.
In an action upon a promissory note by the payee against the maker, the maker may plead and prove a contemporaneous oral agreement that the maker could pay off and discharge such note by the return of the merchandise purchased to the maker from the payee for which such note was given.
2. Same--Estoppel--Acceptance of Release of Chattel Mortgage Containing Recitals as to Indebtedness Held not to Estop Mortgagor to Assert Right to Pay Note by Return of Merchandise.
By the acceptance of a release of a chattel mortgage in which it was recited that a certain promissory note was erroneously included in an affidavit setting forth the indebtedness secured by such chattel mortgage and that said note has not been paid and was not thereby discharged, but was an unrecorded claim, the mortgagor is not estopped to thereafter assert any right, if any he had, to pay off and discharge such note in merchandise instead of money.
Rehearing Denied January 30, 1934.
Appeal from District Court, Okmulgee County; E. A. Summers, Judge.
Action by the Palestine Drug Company against J. M Boggs et al. Judgment for defendants, and plaintiff appeals. Affirmed.
R. L. Suddath and C. M. Gordon, for plaintiff in error.
J. W. Hinton, for defendants in error.
¶1 This is an appeal from the judgment for defendants in an action on a promissory note.
¶2 Defendants admitted the execution of the note sued upon, but pleaded in substance that the note in question, in the sum of $ 430.45, dated November 15, 1926, and due November 15, 1927, was executed for merchandise, and that an oral agreement existed between the parties that such merchandise could be returned by defendants at any time if not wanted by defendants and the note discharged, or in other words, that the note could be paid either in cash or by return of the merchandise at the option of the defendants. The answer further alleged that under said agreement the merchandise had been returned to plaintiff by defendants, but that plaintiff refused to accept same.
¶3 A jury was impaneled to try the issues but it appears that during the course of the trial the jury was discharged by agreement and the cause was submitted to the court. The defendants had, over the objection of plaintiff, introduced evidence tending to sustain the allegations of their answer, and this being undenied, the trial court took the view that only a question of law was involved, and the cause was taken under advisement by the court on the legal question.
¶4 Thereafter plaintiff obtained leave to file and filed an amended reply, alleging, in substance, that on January 10, 1925, defendants had given plaintiff a chattel mortgage to secure a large sum of indebtedness and that on January 4, 1928, defendants had executed to plaintiff another chattel mortgage to secure indebtedness in the sum of $ 1,976.79, and that both of said chattel mortgages had been filed in the office of the county clerk shortly after their execution; that on January 23, 1928, plaintiff had executed to defendants a written release of said chattel mortgages, and that said mortgages had been returned and accepted by defendants under said release, and that one of the releases specifically stated:
...
To continue reading
Request your trial