Persson v. McCormick
| Decision Date | 22 March 1966 |
| Docket Number | No. 41224,41224 |
| Citation | 412 P.2d 619 |
| Parties | 3 UCC Rep.Serv. 436, 1966 OK 53 Frank B. PERSSON, J. M. Peters and Pauline Peter, his wife, and Lillian Taylor, Plaintiffs in Error, v. Max D. McCORMICK, Defendant in Error. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court
It is an established rule that in a suit upon a promissory note, when the defendant by answer admits the execution of the note and pleads an affirmative defense to the plaintiff's right of recovery, the burden rests upon defendant to establish the allegations of the answer by a preponderance of the evidence.
Appeal from Court of Common Pleas of Tulsa County; Tom F. Shaw, Judge.
Suit to recover upon a promissory note wherein trial court overruled defendant's demurrer to plaintiff's evidence. After defendant elected to stand on his demurrer judgment was entered for plaintiff and defendant appeals. Affirmed.
Goeppinger & Harris, Tulsa, for plaintiff in error.
R. P. Colley, N. E. McNeill, Jr., Tulsa, for defendant in error.
This is an action on a promissory note by Max D. McCormick against Frank B. Persson, J. M. Peters, Pauline Peters and Lillian Taylor. Judgment for plaintiff and defendant Frank B. Persson appeals. The parties will be referred to as they appeared in the lower court.
Plaintiff's petition alleged that on July 3, 1962, defendant executed a promissory note payable to the order of J. M. Peters and Pauline Peters in the amount of $2,000.00 with interest at five per cent per annum, payable in monthly installments of $100.00 each commencing January 3, 1963, and continuing until paid; that thereafter and before maturity, J. M. Peters and Pauline Peters, for a good and valuable consideration, endorsed and delivered this note to Lillian Taylor, who thereafter and before maturity, for a good and valuable consideration, endorsed and delivered such note to plaintiff, was 'is now the lawful owner and holder of said note'; that the note provided if any installment becomes delinquent for 15 days, the entire unpaid balance should become due and payable at the option of the holder; that the conditions of the note had been broken in that on the 3rd day of the months of February and March, 1963, defendant Persson refused to make payments as agreed. By reason of such default plaintiff asked judgment against the defendants, and each of them, for $1,900.00, the unpaid balance due and owing on the note, together with interest and attorney fees, all as provided in the note.
J. M. Peters, Pauline Peters and Lillian Taylor did not plead to nor answer the petition. Defendant filed an answer and two amended answers. The amended answer, upon which the case was heard, consisted of general denial, and specifically alleged defendant's signature was obtained by fraud, and that plaintiff had knowledge prior to purchase of the note that there was a 'controversy regarding the amount due on said note.'
The plaintiff's reply to the amended answer contained a general denial, and specially denied knowledge of fault or defect in said note.
The case was tried before a jury. Plaintiff, in his own behalf, testified he purchased the note from Lillian Taylor on January 9, 1963, for the sum of $1,650.00; that there was a balance due on the note in the amount of $1,900.00, plus interest from February, 1963. Upon plaintiff identifying the note it was admitted into evidence and plaintiff rested. Defendant's demurrer to the evidence was overruled and defendant elected to stand on his demurrer. The jury was discharged and default judgment was entered against J. M. Peters, Pauline Peters and Lillian Taylor. Judgment was also entered for the plaintiff against defendant as prayed for in the petition.
Defendant asserts only one proposition for reversal of the lower court's ruling, which is that the trial court erred 'in finding that the plaintiff was in fact under the law, a holder in due course.' The decisive question presented by this appeal involves the correctness of the trial court's action in overruling defendant's demurrer to plaintiff's evidence.
48 O.S.1961 § 129, provided in part:
'Every holder is deemed prima facie to be a holder in due course; but when it is shown that the title of any person who has negotiated the instrument is defective, the...
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...237 Md. 450, 206 A.2d 688 (1965).9 Oklahoma National Bank v. Equitable Credit Finance Co., 489 P.2d 1331 (Okl.1971); Persson v. McCormick, 412 P.2d 619, 627 (Okl.1966).10 See Carleton Ford, Inc. v. Oste, 1 Mass.App. 819, 295 N.E.2d 402 (1973); Star Dairy, Inc. v. Roberts, 37 A.D.2d 1038, 32......
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