Republic Nat. Bank of St. Louis v. First State Bank of Oilton

Citation237 P. 578,110 Okla. 299,1925 OK 289
Decision Date07 April 1925
Docket NumberCase Number: 14919
CourtSupreme Court of Oklahoma

¶0 1. Contracts -- Construction of Different Instruments as Constituting One Contract.

It is a general rule of law that written agreements, one being supplementary to the other, should be construed together as constituting one contract, and this is true although not dated at the same time, yet they refer to the same subject-matter, and on their face show that each was executed as a means of carrying out the intent of the other.

2. Escrows--Wrongful Delivery--Effect.

Where an instrument is placed in escrow to be delivered on the performance of certain conditions, and possession of the escrow is obtained without performance of the conditions, no title passes.

3. Bills and Notes--Conditional Delivery--Effect.

Where the maker of a note delivers it to the payee, or to some third person, with the agreement that it shall not be delivered and become operative until the happening of a certain contingency or the performance of a certain condition, and where neither the contingency has occurred nor the condition been performed, the note never became operative, and an action thereon by the payee or his assignee with notice cannot be maintained.

4. Evidence--Superseded Pleading as Admission.

Matters of defense set up in an answer which has been superseded by an amended answer, complete within itself, and which does not make the original answer a part thereof, by reference or otherwise, are not conclusive upon the defendant, but may be introduced in evidence as admissions against interest, subject to be denied or explained by the defendant, and the question raised between the allegations in the original answer and the testimony denying or explaining such allegations is a question of fact for the jury.

5. Trial -- Instructions on Weight of Evidence.

The court, in its instructions to the jury should not call attention to particular facts in evidence in such a manner as to amount to an intimation of the court's opinion as to the weight of the evidence.

6. Same--Duty to Instruct on Issues.

It is the duty of the court to submit to the jury, and give instructions thereon, any issue, theory or defense, where there is competent evidence reasonably tending to support the same.

Commissioners' Opinion, Division No. 3.

Error from District Court, Creek County; Fred A. Speakman, Judge.

Action by First State Bank of Oilton against Riverside Oil & Refining Company and M. L. Harris to recover on promissory notes. Harris filed answer and cross-petition for judgment and foreclosure of lien. Court directed verdict for plaintiff, First State Bank, and jury rendered verdict against Riverside Oil & Refining Company in favor of Harris, and defendant Riverside Oil & Refining Company appeals. Reversed and remanded.

Twyford & Smith and W. R. Withington, for plaintiff in error.

Hughes & Foster, for defendant in error M. L. Harris.

C. E. Thomas, for defendant in error First State Bank.


¶1 The plaintiff, First State Bank of Oilton, filed its action against the defendants, Riverside Oil & Refining Company and M. D. Harris, to recover judgment on six promissory notes of $ 1,000 each, alleged to have been executed on February 20, 1922, by the oil company in favor of Harris and indorsed by Harris for value, before maturity, and without notice of any infirmities, to the plaintiff.

¶2 By leave of the court, plaintiff filed its amended petition and the oil company filed its verified answer, and by leave of the court subsequently filed a verified amended answer, consisting of a general denial, and for further defense alleges it executed the notes and forwarded them to the plaintiff bank, with the following letter:

"Riverside Oil & Refining Company, 835-836
"Kennedy Building, Tulsa, Oklahoma.
"February 20th, 1923.
"First State Bank,
"Oilton, Oklahoma.
"Attention Mr. Abshire.
"Enclosed herewith find seven promissory notes of $ 1,000 each dated February 20th and due in ninety days, with, eight per cent. from maturity, payable to M. L. Harris. This is in keeping with our agreement with Mr. Harris for the completion of the piling work on the river.
"Under the terms of our contract he was to furnish us with a bond guaranteeing us against loss or liability under material or mechanics' liens. He has never furnished this bond, so it will therefore be necessary for him to furnish us with a release of any lien claims by the respective employees, and firms and individuals who furnished material for this job. It will be necessary for you to get the enclosed releases signed by the different men who have worked for him on this piling work, and the lumber and hardware dealers and other material men who have furnished material for the work.
"When these releases have been properly signed, you at liberty to deliver the notes, to Mr. Harris.
"Yours very truly,
"Riverside Oil and Refining Company.
"By O. O. Owens."

¶3 The answer alleges that disregarding the instructions in the letter, the plaintiff had Harris come to the plaintiff's bank, on February 21, 1922, and transfer four of said notes, by indorsement, to the plaintiff for a past indebtedness, and before any releases of leins were signed, and in violation of the trust imposed upon the plaintiff, and accepted by it, and the notes never became effective as an obligation of the defendant oil company.

¶4 The amended answer further alleges that the defendant oil company entered into a contract with Harris to drive certain piling around oil wells in the river bed; alleges breach of contract, and claims set off against the notes in the sum of $ 4,050. Defendant Harris moved to make the Republic Bank of St. Louis a party defendant, as that bank held a mortgage against the property of the Riverside Oil Company. Harris filed his answer to the plaintiff's petition and admits all the allegations in plaintiff's petition, and in his cross-petition Harris alleges he is the owner and holder of note No. 7, for $ 1,000, that he filed a lien against the oil company's property on February 20, 1922, and prays judgment against the Riverside Oil Company, and for foreclosure of this lien.

¶5 Plaintiff, in its reply, admits the receipt of the notes and letter of instructions; alleges the conditions in the letter were complied with; that it had no knowledge of the nonperformance of the Harris contract for which the notes were given, or of the counterclaim.

¶6 Defendant Riverside Oil Company filed its answer to the cross-petition of Harris, and upon issues joined the cause was tried to a jury.

¶7 After all parties had introduced testimony and rested, the defendant oil company requested certain instructions, which were by the court denied and the oil company excepted.

¶8 The court thereupon instructed the jury to return a verdict for the plaintiff, First State Bank, against the Riverside Oil Company, for $ 6,000, interest, and attorneys' fees, and submitted the question of the right of Harris to recover on the remaining note of $ 1,000, to the jury, and verdict was found for Harris; judgment rendered thereon, from which judgment the Riverside Oil Company appeals, and assigns six specifications of error and presents the same under five heads or "propositions" which will be considered in their order.

¶9 The evidence discloses that Riverside Oil Company and M. L. Harris entered into a contract dated January 7, 1921, by the terms of which Harris was to drive piling in the bed of the Cimarron river to protect the company's oil wells from river water. The contract provided for driving not less than 500 piling, "and such additional piling as the oil company might see fit to have driven," and at points designated by the oil company. After Harris had driven certain piling the oil company determined that additional piling should be driven at places designated by it, and on October 13, 1921, the oil company forwarded to M. L. Harris a letter, a portion of which is as follows:

"Tulsa, October 13th, 1921."
"M. L. Harris,
"Oilton, Oklahoma,
"Dear Sir: Pursuant to our conversation, Tuesday, October 11, at which time you proposed to continue the work of driving piling in the river bed on our lease, it is my understanding that you will furnish all piling which has not been included in your itemized bill of recent date, and in addition to the above mentioned piling, you will furnish enough additional piling to drive a double row of piling from our No. 13 well where some piling has already been driven, down stream along a designated course to approximately sixty feet past our well No. 8."

¶10 The letter further specifies 30 foot piling at designated points, and the contract of January 7, 1921, provided that piling should be driven down to bed rock, or until the piling "broomed" at the lower point; and further provides that Harris will replace at his own expense any piling washed out or otherwise lost or destroyed, and furnish the oil company a perfect completed contract. The letter then provides that upon completion of the whole contract Harris is to receive one note of $ 10,000 payable 90 days after date.

¶11 Upon receipt of this letter, Harris wrote the following acceptance thereon:

"The above conditions are accepted with the understanding that twenty-five foot piling are to be used for shore piling at all points not designated for thirty foot shore piling.
"Accepted, M. L. Harris."

¶12 The proposition is advanced by the plaintiff and defendant Harris that the letter of October 13, 1921, was a separate and distinct contract from the one of January 7, 1922, but with this we cannot agree as the original contract provides for the driving of such additional piling as the oil company might elect, at a stipulated price per, foot and the letter authorizing the continuation of the driving of piling and designating the places to be driven was but supplementary to the...

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