Young v. J.A. Young Mach. & Supply Co., 33903

• Decision Date: 28 November 1950
• Docket Number: No. 33903,33903
• Citation: 203 Okla. 595,224 P.2d 971
• Parties: YOUNG v. J. A. YOUNG MACHINE & SUPPLY CO.
• Court: Oklahoma Supreme Court

Page 971

224 P.2d 971

203 Okla. 595

YOUNG v. J. A. YOUNG MACHINE & SUPPLY CO.

No. 33903.

Supreme Court of Oklahoma.

Nov. 28, 1950.

Syllabus by the Court.

1. Where an instrument designated as 'guaranty' only provided that the unpaid balance of a certain unsecured promissory note may be declared matured and the whole amount due and collectible, at the option of the payee, if the maker executed any mortgage lien, or permitted any lien, judgment or assessment to become a legal charge for more than thirty days upon certain real property of maker, such instrument did not create a lien.

McKnight & Edwards and Elam & Crowley, all of Enid, for plaintiff in error.

Harry C. Kirkendall, Enid, for defendants in error.

JOHNSON, Justice.

Original petition in this action was filed May 5, 1933, by Chester Young against J. A. Young, the father of plaintiff, seeking a judgment for the balance due on a promissory note executed on the 5th of November, 1930, by the defendant J. A. Young for the principal sum of $8,000.00. Payments were endorsed thereon in the sum of $3,700.00 and accruing interest in the sum of $292.91, leaving a balance of $4,300.00. The note provided for an attorneys fee of ten percent in case of forced collection by an attorney.

On June 2, 1933, defendant J. A. Young filed an answer and cross-petition in which he denied every allegation except the execution of the note, asserting that at the time he was an aged man in very delicate health; that on account of his age, health and mental condition, he did not understand what he was doing when he signed the note; that at the time he had a complete offset and counterclaim to the claim of plaintiff; that if he had been in good health and had not been taken advantage of by his son, he would not have signed the note. That about sixty days before the note was executed, his son made a demand on him in writing that he pay him $200.00 per month and interest of alleged services rendered to him (defendant) by his son (plaintiff) for nine years preceding the demand; that his son lived with him during these nine years and was supposed to pay board and laundry, but did not; that the board and laundry amounted to more than the amount of the face value of the note; that he paid on the principal of said note $3,700.00 and $292.91 interest, but because of the depression he was unable to pay more. Defendant J. A. Young further stated that beginning January 1, 1921, the plaintiff boarded with defendant at his home during the period that plaintiff was charging said defendant $200.00 per month for his labor without his knowledge. In short, defendant set out various claimed offsets and counterclaims in the total sum of $8,141.34 and prayed for judgment accordingly. Thereafter, on September 23, 1933, defendant filed an amended answer and cross-petition which was substantially the same as the first except he alleged that the amount of wages asserted as claimed by plaintiff from defendant was $125.00 per month, and prayed judgment against plaintiff for $8,625.95.

After the issues were thus formed, the plaintiff on June 9, 1943, filed an application to make the J. A. Young Machine and Supply Company, a corporation, Beulah Ann Young and Lula Emeline Young party defendants. On the same date an order was entered granting the application and restraining the defendants from disposing of any property in the possession of said corporation. On June 18, 1943, plaintiff filed an amended petition against J. A. Young and J. A. Young Machine and Supply Company, a corporation, Beulah Ann Young and Lula Emeline Young individually and as executrices of the estate of J. A. Young, deceased (J. A. Young died in January, 1943), praying for the cancellation of a deed executed by J. A. Young wherein he conveyed property owned by him to the J. A. Young Machine and Supply Company, alleging that it was held in trust as security for the payment of the note due plaintiff, and also asked that defendants be enjoined from transferring the property involved. On April 20, 1945, the defendants filed an answer to this amended petition, to which plaintiff replied. Upon these issues the cause was tried before a jury on May 8, 1945; and, at the conclusion of all the evidence, plaintiff moved for a directed verdict, which motion was sustained, and the jury was instructed by the court to return a verdict for plaintiff for $4,300.00 less a credit of $50.00 on February 1, 1931, and $537.50 paid June 3, 1931, with interest at eight percent per annum from March 1, 1933, and an attorneys fee of $371.50. The court entered judgment upon the verdict and continued the case as to the other questions raised by the pleadings.

On February 13, 1948, plaintiff filed an amendment to his amended petition, praying that the court establish an equitable lien upon the real estate which had been transferred by J. A. Young to the J. A. Young Machine and Supply Company, a corporation.

On May 28, 1948, after trial, the court adjudged that the evidence was insufficient to establish an equitable lien in favor of the plaintiff against the real property of J. A. Young, owned by him during his lifetime and subsequently transferred to the corporation. Motion for new trial was overruled and this appeal perfected.

The contention presented by plaintiff is that the trial court erred in refusing to impress the real estate transferred by J. A. Young to the J. A. Young Machine and Supply Company, a corporation, with an equitable...