Terry v. Haynes
| Decision Date | 11 July 1916 |
| Docket Number | 7631. |
| Citation | 158 P. 1195,60 Okla. 34 |
| Parties | TERRY v. HAYNES ET AL. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
C. E M. and J. C. T. executed a note to T. E. H., which was indorsed to H. It was admitted by H. and H. C. T. only signed the note as surety. The payment of said note was secured by a mortgage upon a mare and her increase. C. E. M. sold the mare and increase at private sale to H., at which sale J. C. T was present and entered the credit of the price agreed upon for the mare and colt upon the note and did not object to the sale of said animals at the price agreed upon. Held, that J. C. T., in an action to recover the balance of the note, was estopped from setting up the invalidity of said sale.
Where the court sustains a demurrer to the evidence, the court may properly withdraw the case from the jury and render judgment for the party demurring as the state of the pleadings or the proof shall demand.
Commissioners' Opinion, Division No. 1. Error from County Court, Harmon County; E. C. Abernathy, Judge.
Action by A. C. Haynes against J. C. Terry and another. Judgment for plaintiff, and defendant Terry brings error. Affirmed.
Counts & Counts, of Hollis, for plaintiff in error.
C. H Madden and A. M. Stewart, both of Hollis, for defendants in error.
This action was commenced by A. C. Haynes, one of the defendants in error, in the justice court of Harmon county, Okl., to recover upon a note the sum of $125, executed by C. E. Miller and J. C. Terry, to T. A. Hudson and by Hudson indorsed to said Haynes.
The plaintiff in error, J. C. Terry, filed his separate verified answer, admitting that he signed the note sued upon, but averring that he only did so as surety; that at the time of the execution of said note and for the purpose of securing the payment thereof, and protecting him as surety thereon the defendant C. E. Miller made, executed, and delivered to the said T. A. Hudson his certain chattel mortgage whereby he conveyed to said Hudson one certain mare, together with all increase; that the increase of said mare consisted of one colt, and that said mare and colt were worth $160, or more, and that said amount was more than sufficient to pay said indebtedness; that the said Haynes, acting in conjunction with the said C. E. Miller, one of the defendants in error, converted said mare and colt to the use of the plaintiff without the consent of said plaintiff in error, and caused a credit of $75 to be placed upon said note, which said sum was less than half the value of the mortgaged property; that the defendant in error Haynes did not act in good faith in reducing said mare and colt to his possession in the manner and form he took possession thereof, and that the same was done for the express purpose of cheating and defrauding said plaintiff, and which has cheated and defrauded him; that the actual cash value of the said mortgaged property at the time of its conversion was not less than $160, and that the note at said time only amounted to the sum of $135, and that said plaintiff at said time was offered a greater sum for said mare and colt than the mortgaged indebtedness against the same; that if said plaintiff had acted in good faith and foreclosed said mortgage according to law, that said mortgaged property would have more than paid said mortgage indebtedness, and that by reason of the illegal acts of the plaintiff herein the defendant is, and ought to be, fully released from said mortgaged indebtedness.
Defendant in error, replying, admits J. C. Terry signed the note as surety, but denies that he, plaintiff in error, colluded with said C. E. Miller to deprive him of his substantial right. And plaintiff further alleges that J. C. Terry was present when the credit on said note was made, and that the same was made with his consent and at his request, and that he assisted in bringing the stock to town, and that he placed the credit on said note himself, and that he did so in order to save the costs of foreclosure and in order to secure what was estimated as the full value of said stock as a credit on said note.
Hereinafter the parties will be designated as they were in the trial court. The trial resulted in a verdict and judgment for defendant in error A. C. Haynes, and the plaintiff in error appealed to the county court of Harmon county, where the case was tried by a jury.
A copy of the note sued upon, which showed that $75 had been paid thereon, was introduced in evidence without objection, and the plaintiff testified that he traded for it before maturity, obtaining it from Mr. Hudson, the original holder who indorsed it to him; that there had been no payment other than the $75 credited on the note; that the payment was made by a mare and colt upon which he held a mortgage to secure this note.
T. A Hudson, witness for the defendant, testified that he was the payee named in the note offered in evidence; that it was given for a sorrel mare for which he had as security the mare and increase; that he did not know when the credit was paid on the note; that he learned of it later, when Mr. Haynes, who was the first man he talked to about it, asked him about it, and said the remainder had to be paid; that he asked him what he gave for the mare, and h...
To continue reading
Request your trial