Randolph v. Hudson

• Decision Date: 06 June 1903
• Citation: 1903 OK 31,74 P. 946,12 Okla. 516
• Parties: N. RANDOLPH v. JOHN HUDSON.
• Court: Oklahoma Supreme Court

1903 OK 31

74 P. 946

12 Okla. 516

N. RANDOLPH v. JOHN HUDSON.

Supreme Court of Oklahoma

Decided: June 6, 1903

Syllabus

¶0 1. CONTINUANCE.

When application is made for continuance and the same is resisted on the grounds that it is made for delay, and where counter affidavits are filed, and the trial court finds that the application is made for delay, this finding will not be regarded as error, if such counter affidavits reasonably tend to support such finding.

2. SECONDARY EVIDENCE. Where it is shown that the note sued upon is lost, and after diligent search cannot be found in the place or places where the same has usually been kept by the party, it is not error to admit oral evidence of its contents.

3. FORECLOSURE OF CHATTEL MORTGAGE IN PROBATE COURT. Where an action is brought on a promissory note in the probate court, and a request is made for a foreclosure of a chattel mortgage executed to secure the payment of such note, such request. will not bar the right of the court to render judgment on the note if the same is within the jurisdiction of said court.

4. NEGOTIABLE PAPER.

Under the code of this territory a note in the following language, "$ 275.00. Enid, O. T., May 15, 1894. Thirty days after date I promise to pay to the order of J. H. Thomas two hundred and seventy-five ($ 275.00), with interest at the rate of twelve pet cent. from date if not paid at maturity. Value received. N. Randolph." is not a negotiable instrument, and is subject to the same defenses it would be in the hands of the original payee; and a perpetual injunction granted after a full hearing between the original parties to said note before a court having jurisdiction restraining the collection of such note, will be a complete defense to a suit on the same when brought by one who claims to be a bona fide purchaser of the same before maturity, and without notice. Such a defense should be allowed by the court at any time before final Judgment; and a refusal to permit the pleadings to be amended so as to show such defense is reversible error.

5. CERTAINTY NECESSARY TO MAKE INSTRUMENT NEGOTIABLE.

Certainty as to payor and payee, the amount to be paid, and the terms of payment is an essential element of a negotiable promissory note, and that certainty must continue until the obligation is discharged.

On September 4, 1894, the defendant in error, John Hudson, commenced this action in the probate court of Garfield county against N. Randolph, to recover two hundred seventy-five dollars, with interest at twelve per centum from May 15, 1894, upon a note executed by N. Randolph to J. H. Thomas, which note was in words and figures as follows: "$ 275.00. Enid, O. T., May 15, 1894. Thirty days after date I promise to pay to the order of J. H. Thomas two hundred seventy-five, ($ 275.00), with interest at the rate of twelve per cent. from date if not paid at maturity. Value received. N. Randolph." and assigned to defendant in error, and to foreclose a chattel mortgage given to secure the payment of the note.

The said N. Randolph filed his answer in said action, alleging that the note was procured by misrepresentation and fraud; that it was without consideration, and that prior to the commencement of said action, a temporary order of injunction issued out of the district court of Garfield county in an action there pending wherein N. Randolph was plaintiff and J. H. Thomas was defendant, restraining the defendant, J. H. Thomas from negotiating and collecting said note, and that said order was then in full force and effect.

The case was tried in the probate court and judgment rendered against the defendant; from said judgment an appeal was taken to the district court.

Prior to the time the cause was set for trial in the district court, the defendant made an application to file an amended answer, setting up the fact that the temporary order of injunction mentioned in defendant's answer had become final, and that the judgment of the court in the injunction proceedings had proceeded to final judgment, subsequent to the rendering of judgment in this cause in the probate court. The trial court refused to permit said amendment, to which the defendant in the court below saved exceptions.

Previous to entering upon the trial in the district court the defendant made an application for a continuance on the grounds of the sickness of the defendant, which application was resisted by the plaintiff on the ground that said application was made not in good faith, but for the purposes of delay; the trial court overruled said application for a continuance, to which the defendant saved exceptions.

Judgment was rendered in the district court in favor of plaintiff and against the defendant for the sum of four hundred ninety-four and 87-100 dollars ($ 494.87), with interest thereon at the rate of twelve per centum per annum from the third day of December, 1900, and costs of suit.

Motion for a new trial having been regularly filed, heard and overruled, and exceptions saved, defendant appeals said cause, and brings the same here for review. Reversed and remanded.

June, 1903, Decided

Error from the District Court of Garfield County; before John L. McAtee, Trial Judge.

John F. Curran, for plaintiff in error.

W. S. Denton, for defendant in error.

IRWIN, J.:

¶1 While there are several assignments of error in this case. we think it will be necessary to take notice of but three. The first assignment of error is that the trial court erred in refusing the application of the defendant in the court below to amend his answer, so as to show that the injunction writ temporarily issued by the district court had, subsequent to the rendition of judgment in the probate court, been made a final order. This assignment of error we will defer discussing until other errors assigned are disposed of.

¶2 The second error assigned is, that the court erred in overruling defendant's application for a continuance on account of the sickness of the defendant. The record discloses that this motion was resisted by the plaintiff on the grounds that the same was made for delay, and not in good faith. An affidavit was filed on the part of the defendant in the court below, and counter affidavits by the plaintiff, and on the consideration of these affidavits, the trial court found that said application was not made in good faith, but was for delay. The rule has been universally recognized in this court that the findings of the trial court on questions of fact will not be disturbed by this court where there is evidence which reasonably tends to support such finding. In this case we think that an examination of the affidavits on file will show that the counter affidavits aid reasonably tend to support the finding of the trial court, hence, such finding will not be disturbed.

¶3 Another objection urged by the plaintiff in error and assigned as error here is, that the court permitted, over the objection of the defendant in the court below, the introduction of oral testimony, showing the contents of the note sued on in this case. The showing was made to the trial court that the note was lost, and that diligent and reasonable search had been made by the plaintiff to find the same in the place or places in which he usually kept such note; under such a finding we do not think that the action of the court in receiving oral testimony is reversible error.

¶4 The first and only remaining assignment of error is, that the court erred in refusing the application of the defendant in the court below for leave to amend his answer.

¶5 In considering this assignment of error it is necessary that we consider the question whether such a note as the one sued on in this case is or is not a negotiable instrument under the laws of this territory; for if the note in question was non-negotiable, then it would be subject to the same defenses in the hands of the plaintiff in this case that it would have been in the hands of the original payee, and, this being true, an injunction granted by a court of competent jurisdiction after a full hearing, and as a final judgment restraining the original payee from the collection of this note, would be a complete defense. And in the exercise of a sound discretion the trial court should permit the pleadings to be so amended as to admit such a defense at any time before the final judgment in the case; and to refuse so to do would be reversible error.

¶6 The principal importance which is to be attached to the question of negotiability, arises from the rule of law which subjects all non-negotiable notes to any equities which may exist between prior parties, even when they are transferred before due to a bona fide purchaser for value.

¶7 A negotiable instrument is one that is simple, certain and unconditional, and is so defined by the law merchant. It has always been held, both at the common law and by the decisions of most states, that any instrument which does not come within this definition should not be construed to be a negotiable instrument. There seems to be a great difference of opinion advanced by the courts of the different states upon the question as to whether the adding of an attorney's fee to a note as a penalty for non-payment at maturity will or will not render a note non- negotiable. On an examination of the authorities we are of the opinion that the weight of authority is that such an addition in the absence of an express statute will not render a note, which by its terms is negotiable, non-negotiable, although a great many respectable authorities have held to the contrary.

¶8 In the case of Smith v. Nitingale, 2 Starkey 375, it was said by Lord Ellenborough, that:

"An instrument wherein the promise to pay J. S. the sum of sixty-five pounds, with lawful interest for the same, and all other sums which should be due him, was not a promissory note."

¶9 In the case of Carlos v. Fancourt, 5 Term. R. 485, Lord Kenyon observed:

"It would perplex the commercial transactions of mankind if paper

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