Small v. Comer

• Decision Date: 09 April 1935
• Docket Number: Case Number: 24569
• Citation: 171 Okla. 418,1935 OK 409,43 P.2d 716
• Parties: SMALL v. COMER
• Court: Oklahoma Supreme Court

1935 OK 409

43 P.2d 716

171 Okla. 418

SMALL v. COMER

Case Number: 24569

Supreme Court of Oklahoma

Decided: April 9, 1935

Syllabus

¶0 1. PLEADING - Scope of Inconsistent Defenses Which May Be Set up in Answer.

The inconsistent defenses which may be set up in an answer under statutory provisions providing that the defendant may set up in his answer as many grounds of defense as he may have, whether they be such as have heretofore been denominated legal or equitable, or both, are those in which the inconsistency arises by implication of law, and which are in the nature of a plea of confession and avoidance, and not such as involve a direct contradiction of any fact elsewhere directly averred.

2. SAME - Motion to Compel Election Between Inconsistent Defenses.

Where the defenses set up in an answer are so inconsistent that the proof of one necessarily disproves the other, the defendant may be compelled to elect on which defense he will stand, and the proper motion in such case is one to compel an election.

3. SAME - Two Kinds of Inconsistency in Defenses.

Inconsistency in defenses is of two kinds: First. Inconsistency by implication of law, where there is only a seeming and logical inconsistency which arises merely from a denial of plea of confession and avoidance. Second. Inconsistency in fact, which arises where the allegations contained in the different defenses are so contradictory that the proof of one defense will necessarily disprove the other.

4. EVIDENCE - "Expert Witness."

An expert witness is one who by reason of special knowledge, study or education, or special or extensive experience, or special or intensive observation, has knowledge of the subject of inquiry not acquired by persons of ordinary experiences.

Appeal from District Court, Oklahoma County; George W. Clark, Judge.

Action by Myrna Comer against Lillie Small et al. Judgment for plaintiff, and defendant Small appeals. Affirmed.

Estes & Gowdy, for plaintiff in error.

Embry, Johnson, Crowe & Tolbert, for defendant in error.

PER CURIAM.

¶1 Plaintiff in error was defendant below, and defendant in error was plaintiff below. Let them be referred to herein as in the lower court.

¶2 This was an action instituted in the district court of Oklahoma county by Myrna Comer, as plaintiff, against Lillie Small and Joe Z. Brooks, as defendants. The suit was brought on a promissory note executed by the defendants to the plaintiff April 7, 1931 for the sum of $1,000 payable to the plaintiff six months after date, together with interest at the rate of 10 per cent. per annum from date, and if placed in the hands of an attorney for collection, 10 per cent. attorney's fees, and to foreclose a mortgage given as security for the payment of said note covering the real estate therein described situate in Oklahoma county. Plaintiff's petition alleges that defendant had paid only the sum of $100 upon the principal, and no more, that demand for payment has been made and refused, and praying for judgment for the principal sum of $900, together with interest at the rate of 10 per cent. per annum from October 7, 1931, and for $100 attorney's fee and costs of said suit, and for foreclosure of said mortgage.

¶3 That thereafter the defendant filed her answer and cross-petition in said cause, and plaintiff thereupon filed her motion to make more definite and certain and to strike, which motion was thereafter confessed and defendant given time in which to plead.

¶4 That thereafter defendant filed her amended answer and cross-petition consisting of a general denial of every material allegation contained in plaintiff's petition except those that may be specifically admitted therein, and alleging in her cross-petition that she became indebted to the plaintiff in the sum of $1,000, and that on or about September 14, 1931, plaintiff fraudulently, corruptly, and by means of fraud and deceit, secured and compelled defendant to pay to plaintiff the sum of $100 interest on said indebtedness, and that said interest received by plaintiff was in excess of 10 per cent. for the period for which said loan was made, to wit, six months, and in violation of the laws of the state of Oklahoma, and by reason thereof plaintiff is indebted to the defendant in double the amount of said interest in the sum of $200, and for a reasonable attorney's fee in the sum of $100, and praying against plaintiff accordingly.

¶5 To said amended answer and cross-petition, plaintiff filed her motion to strike and require defendant to elect whether the $100 paid by defendant to plaintiff on September 14, 1931, was paid as interest for an extension of the note and mortgage sued for, for one year, or said payment of $100 on said date was paid as usurious interest upon said note for a period of six months as alleged in said answer and cross-petition, and to strike the allegation:

"That on or about September 14, 1931, plaintiff fraudulently, corruptly and by means of fraud and deceit secured and compelled defendant to pay to plaintiff the sum of $100 interest on said indebtedness, and that said interest received by plaintiff was in excess of 10 per cent. for the period for which said loan was made, to wit, six months, and in violation of the laws of the state of Oklahoma, for the reason that the same is redundant, irrevelant, and immaterial, and inconsistent with defendant's allegations that said sum of money was paid for an extension of said note and mortgage."

¶6 Said motion was sustained by the court, and defendant thereupon in open court elected to stand upon her allegation in her amended answer, "that said sum of money was paid for an extension of said note and mortgage for a period of one year."

¶7 Plaintiff filed her reply, which consisted of a specific and general denial of the allegations of the amended answer and cross-petition of defendants.

¶8 Trial was had to the court without the intervention of a jury, and the court rendered judgment for the sum of $900, with interest thereon at the rate of 10 per cent. per annum from October 7, 1931, and for $100 attorney's fee and for costs of suit, and for foreclosure of plaintiff's mortgage, to which defendants excepted and exceptions were allowed.

¶9 Defendant Lillie Small says that the order of the court requiring her to elect whether the $100 paid by defendant was paid as interest for extension of said note and mortgage for one year, or was paid as usurious interest as alleged in the cross-petition, and that the order of the court striking out a part of the cross-petition referring to the usurious interest, were reversible error, and these are discussed in defendant's brief as grounds for reversal of said cause.

¶10 Defendant says that the order of the court requiring her to elect Is error, and, in itself, justifies a reversal of this case, and invokes the third paragraph of section 206, O. S. 1931, in support of his contentions, to wit:

"Third. When relief is sought, the nature of the relief to which the defendant supposes himself entitled. The defendant may set forth in his answer as many grounds of defense, counterclaims, set-offs and for relief, as he may have, whether they be such as have been heretofore denominated legal, or equitable, or both. Each must be separately stated and numbered and they must refer in an intelligible manner to the causes of action which they are intended to answer."

¶11 This statute was adopted from the state of Kansas and became the law of the Territory of Oklahoma on the 14th day of August, 1893. At the time of the adoption of said statute, the same had been construed by the Supreme Court of that state, and such construction was also adopted with the statute.

¶12 It has been loosely claimed that the above statute permitted what is called "inconsistent defenses." It is the general rule that a party cannot rely at the same time on inconsistent defenses. Fetzer & Co. v. Williams (Kan.) 103 P. 77; Wright v. Bacheller, 16 Kan. 259.

¶13 Defenses are said to be inconsistent when proof of one necessarily disproves the other. Osborn & Co. v. Shilling (Kan.) 88 P. 258.

¶14 It is well settled that facts admitted by the pleadings cannot be disputed by the evidence, but must be taken as true for the purposes of the action; and in the nature of things a party cannot in fact have inconsistent defenses. It is impossible that a thing may be true and untrue at the same time. For this reason parties are not allowed to set up inconsistent defenses for such defenses carry falsehood upon their face. Therefore, whenever a defendant admits anything in his answer, it is right to presume that the admission is intended to modify and control anything else that may be found in the answer in apparent conflict therewith. Butler v. Kaulback, 8 Kan. 668.

¶15 However, inconsistent allegations do not render a pleading demurrable; the proper course is to compel the parties to elect on which of the inconsistent grounds they will rely. Fetzer & Co. v. Williams, supra; Munn v. Taulman, 1 Kan. 254, 81 Am. Dec. 508; Ferguson v. Printz (Kan.) 41 P. 988.

¶16 The above cases, together with others too numerous to mention decided by the Supreme Court of Kansas, outline the construction of the above statute at the time of its adoption by the Territory of Oklahoma, and in our opinion should be followed by the courts of this state.

¶17 The defendant insists that even if the defenses pleaded by her are inconsistent unless expressly prohibited by statute, they may still be united in one answer, and that she cannot be compelled to elect between such defenses.

¶18 The plaintiff says that inconsistent theories of defense, or defenses rendered inconsistent by implication of law, may be pleaded, but not inconsistent defenses when based upon inconsistent, contradictory, or repugnant facts; and that the facts pleaded in defendant's amended answer and cross-petition are inconsistent, contradictory, and repugnant; that defendant paid $100 interest for an extension of the note sued on for one year,...