Thompson v. Irvin
| Decision Date | 23 May 1961 |
| Docket Number | No. 39015,39015 |
| Citation | 362 P.2d 460 |
| Parties | C. B. THOMPSON, Plaintiff in Error, v. Marilyn IRVIN now Hodges, individually and as administratrix of the estate of R. M. Irvin, dec., and C. T. (Whitey) Wilburn and Dick Truitt, Defendants in Error. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
1. On a demurrer to the evidence, all evidence that is favorable to the demurring party is withdrawn from the consideration of the court, and the remaining testimony, with all reasonable inferences that may be drawn therefrom, should be considered by the court in determining the sufficiency of the evidence to withstand the demurrer.
2. Under facts of this case, validity of sale of registered quarter horse was not contingent upon reporting sale to the American Quarter Horse Association.
3. Under law of Texas, a chattel mortgage as between the parties may be created by parol and an equitable mortgage lien may be created by oral agreement founded upon a valid consideration.
4. Under law of Texas, a donee of personal property is not treated as a purchaser thereof in good faith within purview of Texas statute relative to registering chattel mortgages.
Appeal from the District Court of Pontotoc County; John Boyce McKeel, Judge.
Action by plaintiff as holder of alleged chattel mortgage lien on stallion to recover possession thereof or its value. From order of trial court sustaining defendants' demurrer to plaintiff's evidence, plaintiff appeals. Reversed and remanded with directions.
King & Wadlington, Ada, for plaintiff in error.
Busby, Stanfield, Deaton & West, Ada, for defendants in error.
In this action, plaintiff in error, C. B. Thompson, hereafter referred to as 'plaintiff', seeks, as an alleged mortgagee, to recover judgment against the defendant in error, Marilyn Irvin now Hodges, hereafter referred to as 'Mrs. Hodges', and C. T. (Whitey) Wilburn for possession of a stallion or its value, and for damages against Mrs. Hodges in her individual capacity and in her capacity as administratrix of the estate of her father, R. M. Irvin, deceased, for detention of the horse. Wilburn and intervenor, Dick Truitt, claim a lien on the horse for boarding and caring for it. Wilburn had possession of the horse as of date this action was filed.
A jury was empaneled to try the case. At the conclusion of plaintiff's case in chief, a demurrer was interposed which was sustained as to Mrs. Hodges and Wilburn. Trial of the issues presented by Truitt's plea in intervention was reserved. From order denying plaintiff's motion for new trial, he perfected this appeal.
The sole issue presented by this appeal is whether plaintiff had a chattel mortgage lien on the stallion.
The facts bearing upon the referred-to issue are these: On or about November 10, 1957, R. M. Irvin called at the home of Rex Barrett in Pampa, Texas, for the purpose of (1) obtaining Barrett's assistance in registering with the American Quarter Horse Association, hereafter referred to as 'Association', some horses that Irvin had theretofore purchased from Barrett, and (2) purchasing other horses from Barrett. Following negotiations, which extended over a period of two days, Barrett agreed to sell and Irvin agreed to buy a 'using horse' at the price of $300, and a black stallion for $1,500. The stallion was registered with the Association.
Irvin advised Barrett that he would pay for the using horse but wished to give a note secured by a chattel mortgage for the stallion. Barrett agreed. The parties were unable to find a form of chattel mortgage at Barrett's home where negotiations for the sale of the horses had been conducted and in lieu of the usual chattel mortgage, Irvin drafted the following referred-to instrument, which is hereafter referred to as 'note', which he stated would serve the same purpose as the usual chattel mortgage:
'Name R. M. Irvin Amt. $1,500.00
'Pampa, Texas Nov. 12, 1957
'One year after date for value received, I, we, or either of us promise to pay to the order of
C. B. Thompson
'Fifteen hundred and no/100 Dollars (there followed a provision relative to rate of interest, possible attorney's fees, etc.)
'Secured by one black horse No. 47,886
s/'R. M. Irvin
'Due 11/12/58'
The number 47,886 shown on the note was the registration number given the stallion by the Association upon the stallion's being registered with it.
As of date of sale, Barrett owned a half interest in the stallion and plaintiff owned the remaining interest.
It appears that under the regulations of the Association, every transfer of a horse that it has caused to be registered must be recorded with it. The Association caused to be prepared a form of 'Transfer Report' covering the transfer of horses registered with it and made same available to interested persons. In said report, reference is made to the referred-to regulations of the Association.
Following his execution of the note, Irvin advised Barrett that it was his wish that the stallion be registered with the Assocition in Mrs. Hodges' name. In filling in the form of transfer report Barrett showed that he had transferred title to the horse to Mrs. Hodges. It appears that Mrs. Hodges' name had not been mentioned during the negotiations that led to sale of the stallion and that her name was not in fact mentioned until after Irvin had executed the note.
A few months following sale of the stallion, Irvin died intestate. Proceedings to probate his estate were instituted in the County Court of Ellis County, Oklahoma. Plaintiff filed a claim based upon the note with Mrs. Hodges as administratrix of Irvin's estate which was allowed in the principal amount of the note and accrued interest. No payments have ever been made on the note.
Plaintiff contends that Barrett sold the stallion to Irvin and not to Mrs. Hodges; that the sale occurred wholly in Texas; that under the laws of Texas the note served to give plaintiff a lien on the stallion; that under the law of said State, the oral agreement to give a chattel mortgage also sufficed to give plaintiff a chattel mortgage lien on the stallion.
Defendants contend that Barrett transferred title to the stallion to Mrs. Hodges and not to Irvin; that as to Mrs. Hodges, plaintiff did not retain a lien on the horse.
In Clark v. Hawkins, Okl., 321 P.2d 648, we said this in the second paragraph of the syllabus:
'On a demurrer to the evidence, all evidence that is favorable to the demurring party is withdrawn from the consideration of the court, and the remaining testimony, with all reasonable inferences that may be drawn therefrom, should be considered by the court in determining the sufficiency of the evidence to withstand the demurrer.'
The above quoted rule is applicable to and will be applied in considering the evidence bearing upon the issues presented by...
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Sawyer v. St. Louis-San Francisco Ry. Co., LOUIS-SAN
...by the trial court for the purpose of ruling on the demurrer. In the first paragraph of the syllabus in the case of Thompson v. Irvin, Okl., 362 P.2d 460, we 'On a demurrer to the evidence, all evidence that is favorable to the demurring party is withdrawn from the consideration of the cour......