Steward v. Commonwealth Nat. Bank

• Decision Date: 14 November 1911
• Citation: 119 P. 216,29 Okla. 754,1911 OK 440
• Parties: STEWARD v. COMMONWEALTH NAT. BANK.
• Court: Oklahoma Supreme Court

119 P. 216

29 Okla. 754, 1911 OK 440

STEWARD v. COMMONWEALTH NAT. BANK.

Supreme Court of Oklahoma

November 14, 1911

Syllabus by the Court.

In an action upon a negotiable promissory note by the indorsee thereof before maturity in due course of business, the maker of the note offered to introduce in evidence a written contract between him and the payee, executed as a consideration for the note and to show that the payee had violated the contract, and that the consideration of the note failed, before the maturity of the note. The refusal of the court to admit said contract and the rejection of evidence tending to show a violation thereof will not be held reversible error, in the absence of any showing, attempt to show, or statement by the maker that he could show, that the indorsee had notice of such contract and of the failure of the consideration at or before the time he purchased the note.

The refusal of the court to permit a witness to answer a competent question is not reversible error, if subsequently the witness has been permitted to answer, the same or substantially the same question.

A promissory note, dated in Texas and made payable in that state, in the absence of other proof, is a Texas contract and is governed by the laws of Texas relating to the validity of its provisions.

In the absence of proof as to what the law of another state is upon any question, it will be presumed that the law of such state is the same as in this state, the forum in which the action is prosecuted.

Error from Pontotoc County Court; Joel Terrell, Judge.

Action by the Commonwealth National Bank against S. P. Steward. Judgment for plaintiff. Defendant brings error. Affirmed.

Bullock & Kerr and J. F. McKeel, for plaintiff in error.

Stone & Maxey, for defendant in error.

HAYES J.

Defendant in error, hereinafter called the "bank," instituted this action in the court below to recover on a promissory note the sum of $437.50, interest, and attorney's fees. Said note was executed by plaintiff in error, hereinafter called "defendant," on the 7th day of July, 1907 to one L. M. Generes, payable on the 1st day of the following November. The bank alleges that the note was transferred to it on the 4th day of September, 1907, before maturity in the due course of business, without any notice of any equities between the maker and the payee. Defendant by his answer denies that the note was transferred to the bank before maturity without notice of equities, and alleges that since the execution and delivery of the note, without his knowledge or consent, a material alteration has been made in it, in that the word "ten," relating to the amount or rate of interest contracted to be paid on said note, has been erased and the word or figure "eight" inserted in the place thereof. Upon these issues the case was tried to a jury whose verdict was for the bank, upon which judgment was accordingly rendered.

No question was made in the lower court, and none has been made here, as to the negotiability of the note sued upon. Both parties have proceeded in both courts upon the theory that it is a negotiable instrument, and we shall proceed upon the same theory, without examining the form of the notes for the purpose of ascertaining whether it is. The alleged errors of which defendant complains are the rejection of certain evidence offered by him and the allowance by the court of the bank to recover judgment for 10 per cent. of the amount of the note as attorney's fees. Defendant's counsel by various objections, most of which were sustained, offered to establish that which is stated in substance in the case-made in their own language as follows: "Defendant now offers to prove by the defendant's own testimony that at the time this note was executed same was executed upon an express written understanding with the payee, Generes, that he receive a policy of insurance, and that this note was to cover the first premium on same; and that the annual premiums were to be an agreed...