Stringer v. Kessler

• Decision Date: 29 February 1916
• Docket Number: 5745.
• Citation: 155 P. 867,56 Okla. 50,1916 OK 273
• Parties: STRINGER v. KESSLER.
• Court: Oklahoma Supreme Court

155 P. 867

56 Okla. 50, 1916 OK 273

STRINGER v. KESSLER.

No. 5745.

Supreme Court of Oklahoma

February 29, 1916

Syllabus by the Court.

A claim for damages arising from a breach of a contract for the sale of stock in a corporation is assignable.

An answer, which alleges that plaintiff made such a contract and the same was broken by him, which caused damage to another, which claim had been transferred to the pleader before suit, stated a defense, and it was error to sustain a demurrer thereto.

To determine whether a claim for damages is based upon contract or tort, it is proper to examine the pleadings and ascertain from the allegations and prayer thereof the relief sought and every doubt will be solved in favor of the contract and against the tort.

Commissioners' Opinion, Division No. 3. Error from County Court, Cotton County; Austin Akins, Judge.

Action by Ed Kessler against George Stringer. Judgment for plaintiff, and defendant brings error. Reversed and remanded for new trial.

H. W Morgan, of Anadarko, and D. B. Madden and W. A. Ruggles, both of Walters, for plaintiff in error.

Lon Morris, of Walters, for defendant in error.

HOOKER C.

This suit was instituted by the defendant in error against the plaintiff in error to recover a judgment upon two promissory notes. The defendant below admitted the execution of the notes, but alleged that the same were executed and delivered to the plaintiff below as a part of the purchase price of certain stock in a hardware company sold by the defendant in error to one H. W. Davis, and that on or about the 17th day of August, 1910, the plaintiff below and one H. W. Davis entered into a written contract, whereby the said Davis bought 26/50 of the stock in said corporation at the net invoice of the assets of said corporation, and that the plaintiff below had represented to said Davis that said stock was worth par or $2,600; that the said Davis relied upon the representations of the plaintiff as to the net assets of said corporation and paid to him the amount shown to be due by the invoice of the assets of said corporation, and a part of said consideration thus paid by Davis to the plaintiff was the execution and delivery of the notes sued upon in this case. It is further alleged that the invoice thus made by the plaintiff showing the net assets of the corporation upon which the said Davis relied when he purchased the interest of the plaintiff in said corporation was not correct, in that the same showed net assets in excess of the true net assets to the extent of $2,134.94, and that by reason of this false statement as to the amount of the net assets the said Davis overpaid to plaintiff the sum of $1,111.06, and that the said plaintiff was liable to Davis for the return of said money with interest thereon from August 17, 1910, the date the contract was made. It is further alleged that, as a part of said contract between the plaintiff and the said Davis, the said plaintiff agreed and guaranteed the payment of all notes and accounts then due said corporation to the extent of the interest sold and assigned by him to the plaintiff, to wit 26 / 50; that after the execution of said contract it was ascertained that $275 of the accounts due the corporation were worthless and insolvent, and by reason of plaintiff's guaranty he is liable to the said H. W. Davis for 26 / 50 thereof, amounting to $135; and that by virtue of his contract there has been a breach thereof, whereby he is liable to Davis in the said sum of $135 and the further sum of $1,111.06 as stated above. It is further alleged that on the 11th day of June, 1912, at a time prior to the institution of this suit, the said H. W. Davis had sold and assigned to the plaintiff in error his claim for damages for violation of said contract against the defendant in error, and that the plaintiff in error was the owner and holder of same and entitled to plead it in bar of recovery upon said notes. The lower court held that this claim was not assignable and could not be pleaded as a defense to the notes sued upon, and rendered a judgment in favor of defendant in error and against the plaintiff in error for the amount of said notes, with interest and attorney's fees, and to reverse said judgment an appeal is...