220 P. 590 | Okla. | 1923
This case is very much complicated and we are unable to bring ourselves to agree with the trial court in the manner in which it disposes of the case. There are so many complications in the case, and to our mind so many equities in the case, that ought to be taken care of, that we think it would have been much better if the court had sent the case to a referee and let the referee state the account between the parties, and take testimony on the various contentions with reference to the agreement to release certain properties from the lien of the mortgage upon the payment of certain sums of money, and reported his findings of facts and conclusions of law to the court. This course, in our judgment, would be a much better way to try the case than for the court and a jury to figure it out from the pleadings and the statement of the case of counsel for defendants. We have worked out the following: The application for the loan was for $11,750 and the bonds, interest coupons, and mortgages were all drawn on a loan basis of $11,750, but a few days after the loan was made and the papers drawn up, the loan company reduced the loan to $11,000 in the following manner: The Oklahoma Farm Mortgage Company tore out the first coupon bond, which was for $250, and the last coupon bond, which was for $500, and canceled them and handed them back to Cesar and said, "That reduces the loan to $11,000." No change was made in the papers that had been drawn on the basis of a $11,750 loan, they all remained with the figures the same. Now take the interest coupons, for example, they were calculated on a $11,750 loan and not on a $11,000 loan, and Cesar is still paying interest on $11,750 instead of $11,000, the amount he actually got. We *256 have not figured out the commission notes and interest, but it is a fair presumption that they will figure out in the same proportion. Then take the agreement that John A. Helton had with Cesar and the Oklahoma Farm Mortgage Company and Andrew Kingkade, trustee, and if the facts are as stated Helton's pleadings and in his attorney's statement of the case, Helton had a right to have that land that he bought released from the mortgage. The same is true of the agreement entered into with J.P. Pillars, and so far as the American National Bank transaction is concerned, that was reduced to writing, and the written agreement is in the pleadings, and the bank alleges that they tendered the Oklahoma Farm Mortgage Company and Andrew Kingkade, trustee, the $3,500 and its proportionate share of the interest up to that time, and that Kingkade and the Oklahoma Farm Mortgage Company refused to release the land that the American National Bank had bought, but offered to take the money and credit it on the indebtedness generally, but would not release any of the securities. Pillar and Helton acted on the agreement made with the Oklahoma Farm Mortgage Company and Andrew Kingkade, took their deeds from Cesar and went on the land and improved it, and when the time come to make payment at the interest period, payment was refused unless they would permit them to credit it on the indebtedness generally and leave the lien on their land. It seems to us that if these facts are true that all of these parties have equities and if the proof bore out the statement of these facts, Helton and Pillars would be or might be entitled to pay for the improvements. The same might be so of the American National Bank. We think there is too much doubt about these various transactions to have entered judgment on counsel's statement, and then the manner in which the $11,750 loan was attempted to be reduced to the $11,000 loan does not work out according to our way of figuring. It is clear to us that justice has not been done the interested party, and that this case should be reversed and remanded.
We have read the pleadings and the statement of the case made by counsel for defendant, and we cannot take the same view of the transaction as the trial court. There has been very few cases where this court has sustained a judgment entered on the pleadings or on the statement of counsel. We have examined those cases where the Judgment has been upheld but they stand on an entirely different footing from the case at bar. In those cases, it was clear from the statement that the part defendant was not entitled to recover under any phase, of the case, but in our judgment that is not the case here, and we are not satisfied to affirm this case where there is as much doubt exists as does in this case. In fact, we cannot bring ourselves to conclude that none of the defenses set up have no merit. We are convinced that at least some of them have merit. The amounts to be adjusted may be small, but that does not enter into the question as to whether the court committed error in entering judgment on the statement of counsel for the defendants. There are other errors assigned but it is unnecessary to notice them as we hold that for the errors pointed out, the case should be reversed and remanded, with directions to grant a new trial.
By the Court: It is so ordered.
