Dusbabek v. Bowers, 43 P.2d 97

many gence, in the band and in divorce relation of she lived worked hus- and case larger wife existed between them.” United States of the cities foreign extensively coun- and traveled repudiated by plaintiff This evidence was represented that she herself tries. The fact proceeding, being in this her statement a divorcee on more than one occasion as thought since she the matter more and facts which we have hereinabove she had stating decided that error she was she knew about referred to indicate copy that she had received a of the reviewing carefully the evi- journal After divorce. entry documentary in 1918. Certain conclude, dence, the trial we must application evidence was introduced. An court,, information passport deposited a Depart- with State years many granting of said divorce 24, States, July ment of United sworn to con- 1927. Her prior written statements statement, “I am divorced contains cerning status, her marital' her letters my from husband.” Included in state- husband her former toward and attitude ment was the further averment that her impel tous conclusion. this Tulsa, residing husband was now Okla. It is further shown that in 1918 made she ef the force Plaintiff seeks avoid application for overseas service with a divorce fect of in decree of questionnaire X. M. C. A. years equity than 18 commenced more which she stated that she was divorced. than and more- date the decree after being It is accepted further shown that after discovery years there ten of. Since the record fails from date for overseas service with the X. M. C. A. a reason to show Application she an Form for Militar- her failure to assert for her able excuse rights questions ized Personnel in which one of the date, an disclosed at earlier there was, you single?” “Are married or and the part lack of due dili on her an inexcusable answer-was. “Divorced.” acts gence. further conclude We receiving in plaintiff after and conduct of Following her war service it shown that divorce, together concerning the formation extensively she traveled Europe and rights an at her her failure to assert during Asia and her course of travels date, acqui an actual constituted earlier escence tention on her wrote several letters to Mark E. Davis. divorce, in in said and evinced purpose of these communications part claim abandon money to obtain from him to meet various rights accruing her of marital emergencies arising through sickness and marriage claim Her prior E. to Mark Davis. during other causes the course of her travels limita barred statute is therefore over the world. We will not burden this City Guthrie laches. See tion and opinion ouoting full, them in carefully but we 851; Rich McKennon, P. 19 Okla. v. ardson v. Finley them examined do Howard, 151 P. 51 Okla. find hint, suggestion, letters 950. Riley, 91 Okla. implication that she considered marriage relationship still existed between judgment of the error in find no We them. affirrned. court, and the same is trial WELCH, BAXLESS, GIB- accept RILEX, testimony If we true SON, JJ., trial, concur. the former is conclu- sive that she had actual notice of the di- proceedings vorce grounds upon informed granted. which the divorce was If her evidence at the trial of this cause copy* correct and did not she receive BOWERS, Admx. DUSBABEK v. journal undisputed entry, then her tes- 30, 1934. Oct. No. timony period effect years more than 20 lived tire she and her husband Rehearing Denied June separate during apart the en- period she no effort made discover whether he had or a divorce obtained not, this, notwithstanding the fact that she learned 1920 where was liv- ing and thereafter wrote numerous let- seeking ters financial assistance and more than occasion one received financial assist- ance him. record she shows that average is woman more than intelli- Lookabaugh, Beets, I. H. A. M. Wal- Marlin, plaintiff ter in error. Morrison, Morrison, Morrison for de- fendant in error. McNEILL, replev- J. an action in This is purpose in for the foreclosing certain mortgages, securing notes, given by certain defendant, Bowers, the Case Frank J. I. Threshing Company, Machine aon threshing separator, etc., machine and a engine. second-hand parties will they be referred to as appear cause; George the trial of said Dusbabek, plaintiff F. and Frank defendant. error, Bowers, error, defendant alleged Plaintiff two causes of action. The threshing action involves a machine, separator, equipment and other therewith, used connection while the second cause of action involved the Plaintiff in his first cause of action al- leged that he was the owner and holder mortgages assignment; of the notes gave that said threshing to said company promissory note, machine $1,771, security amounted to and as for the payment gave company thereof a chat- mortgage covering threshing tel chine ma- plaintiff company equipment; ownership property in J SDecial $1,500; value of was entitled immediate wrongful for the detention of reason of of $1,000 by the same in sum payment the default said notes. Plaintiff his second cause of alleged 27, 1923, might ceeds of that on collections June paid $900, collateral notes. sum of indebted to being the balance due on certain notes alleged in his counterclaim also Defendant which defendant had executed that, been notified of after in pany threshing favor of the said machine com- engine. and its failure the condition for the Plain- operate separator of its to leaky alleged tiff further been had to and that he try requested company agent of said special ownership engine had in the valued fixed, engine that and stated said to have the $500; at the that defendant had in defaulted company defendant reimburse said would payment notes, .plaintiff of said and that having re- paid same money in the out for was entitled to the immediate indemnify defendant paired and wrongful the same and for deten- damages. and loss all in tion $500. the sum damages, items the for asked Defendant answer, admitting Defendant an filed the counterclaim, in his forth were set which execution of the mortgages, notes and and $8,111.88. amounting to up set certain interposed defenses and jury, re- tried to was case counterclaim. Defendant he denied in- was defendant. the in favor upon a verdict turned debted mortgages, said notes and and follows: as alleged possession was The verdict that was not entitled to property. of said The defendant empaneled sworn jury, and “We, the alleged cause, further engine the which was entitled above the in try do, issues the represented oaths, sold to him being was defendant for the upon as in find our good for sued condition, the way possession of every and suitable in the for in’ action plaintiff’s cause operate pull the to tor used separa- and the defendant’s $1,446.30/100 and sum of in the value threshing grain; for the plaintiff’s in the also, property sued the representations the were false fraudu- in the value or its second sum dition lent; engine the could not be used to defendant, in ad- $900, the operate threshing separator; the machine thereto, the recover that, by engine, in the defects damages, $690.” the sum as up repre- and its failure to come to the submit- interrogatories also were Special him, sentations made to he the rescinded interrogatories and jury. Said the ted purchase engine contract of of said and ten- as follows: are answers plaintiff upon dered the same to con- the dition that the Interrogatories. return to him the “Special mortgage given by notes purchase him for the defendant 1. Did the “Interrogatory No. -engine. of said .Defendant al- also contents Bowers,’ know the read Frank leged in said second cause of action that at con- 15, being order the No. exhibit of” purchase the time of the engine he engine shipment of the signed the tract signed purported what was signed have been same? the he time at the before Answer: engine a written order on which the would No. shipped; be glasses that he did not have his repre- Were “Interrogatory 2. No. them; and was unable to read without condition toas or statements sentations of agent, Ellison, the read, he knew that could not made question case in this engine in signed and the instrument ref- in was H. M. Bowers Frank defendant to the signed erence to the contract with before time or the shipment, at Ellison An- understanding being 15? exhibit it contained a ver- order swer agreement previously Yes. bal : entered into between them in reference repre- “Interrogatory Were 3. No. engine being good in condition and ser- condition as to the or statements sentations operating Frank separator; viceable for engine to the made Okeene, went knew at time instrument which Bowers so, same, if Okla., to examine he bal in was not accord with the ver- Yes, by F. Dusbabek. Geo. Answer: whom? agreement, and that defendant en- titled to rescind the contract and have the “Interrogatory condition No. 4. In what mortgages covering question judge was the same who had submitted the by dismissed reason of fact no final jury. through Ostensibly case to the over- judgment had been rendered therein. See sight, judgment pronounced had not been Bowers, 179, v. Okla. Dusbabek 132 270 upon the verdict after its rendition. It September 20, 1928, 3. On this court issued rights strangers not shown that the court, to the trial mandate which was intervened. record, spread thereafter, on Octo- appears There from 27, 1928, record three or- ber trial tile court rendered excepted by ders judgment to wit: conformity said action jury. the verdict of the (1) Judgment upon jury verdict of the adjudication 27, There is no in an action at entered October 1928. jury judg- law when tried without a (2) 24, 1928, Order of November overrul- Until ment rendered verdict of the verdict. ing overruling motion to vacate the order jury received sanction has the motion for new trial which was filed passing judgment, by of the court into May 18, 1928. effect, lacking in it has no force and and is (3) judgment. 24, 1928, a final Free- Order of November See

the man 718, p. sustain- essentials (5th ing Ed.) Judgments, 2 motion on sec. to strike vol. the motion for new trial 30, filed October 1928. 1516. judgment judgment The- in an action un- is rendered No rendered on was the ver- judge officially 27, announces his dict trial til October 1928. There- timely after a motion for new trial decision. was 30, filed on October November 1928. The court on Peckham, Okla in the case of Mr. Justice 24, 1928, ordered that said motion 529, McMaster, City 196 U. S. homa v. for new trial be stricken. was This tant- adjudicata plea speaking with res overruling amount At the same. judgment, said: out hearing on said motion to strike said motion words, thing adjudged must 24, 1928, plain- “In other new trial on November verdict, judgment. finding by a A or gave open tiff notice court of his inten- alone, rea- The court is not the son sufficient. appeal Supreme tion to Court and is, judgment bar is the stated requested an extension of time within which preliminary and not the court dict was set determination make, serve, case-made, and settle a but may jury. or be that the ver- It specifically grant the court refused to an aside, finding or the facts make, time extension serve, within which to amended, reconsidered, or themselves set judgment granted. and settle a case-made. or a The aside new The court trial Springer alone is the foundation for bar. as follows: stated Bien, v. 128 N. Y. 99.” “I see no extension at all. judgment A it gives you does not exist until is of- (15) (3) The and three fifteen statute three fically pronounced, (3).” “expressed, or made appropriate way.” known some Gold The case-made served on December was reyer Cronan, 113, Conn. 55 Atl. 1928, 5, days which date was within eleven Appeal Bulkeley (Conn.) 57 Atl. after the motion new trial was stricken judgment having No until days provided rendered by and was within the fifteen knowing be a case-made shall tract or otherwise witliin which its contents was statute served when reading glasses made. he not have his no extension oí time ai the , signed it, Notice of and contends settlement of case-made for 23, reading 1929, defendant was not excused from contract he did not March served on defendant. was suggestion having made, him it read to because No of amendments was reading glasses, have his and the trial court settled said case-made 23, appeal lodged on March was under Green v. rule announced cases 25, 1929, 255, April Machinery Co., in this court on within Okla. six Cox provided McKinney 244 P. months within which statute McDonald v. et appeal appeal al., must be taken. The 143 P. Okla. the defendant perfected time, reading therefore and the case the contract was not excused pos having be on the merits.' considered him it if he was read to In furtherance of faculties. session of his presents plain- Defendant no defense to contention, cite counsel controversy tiff’s cause of action. The been announced the correct rule has second of action in ref- centers on the erence to the second-hand cause Supreme of Louisiana in case Court engine. Co., Sawmill 105 So. Snell v. Union purchased the second-hand it incumbent wherein it upon was held Ellison, plaintiff through H. M. from the party signing an instrument before purchaser’s sign a who read, it, if he cannot if he can to read covering engine. contract was read, listen and to to have it read accepted shipped El Reno attentively thereto. engine glasses, have which he did not out his him, respect second-hand the to tion request agent to ownership the he did not time and the at except the as to him. delivery. it to contract con- testified read tained a This The defendant place of provision signing the it understood that was his of circumstances the as to agreed purchased and as that the was as follows: contract a “the com- second-hand that was “Q. And, circumstances what under guaranties pany warranties of makes no or A. placed this contract? on your signature implication, any kind, express by or either I didn’t that Well, Mr. Ellison I told ownership except at the time and said, ‘This he glasses to read no says, delivery.” order,’ place contends just he nothing only of a common provisions we have talk ‘just verbal know these that he not that same as the the ” signed, were in had.’ the which instrument he agent falsely represented that the Ellison said: it is 13 C. In J. anything that but the contract did not contain writing that a representation “A false they verbal talk the reference by party prepared terms one embodies the. negotiating sale, to effect that the the which was to the inducing agreement, previous the oral aof good was in condition reading sign party in- the without other strument, held fraud sert to satisfactorily operate separa- and would the a number of cases has been tor. i party may as- which the misled although this, other. And the Plaintiff that the court contends pru- may guilty a want he dence have been of of favor; have directed a verdict in his that relying representations, on such the evidence was not sufficient to the void underlying principle these decisions of the contract; effect of a written no evidence that that there was negligence party a being contract of a to that contract written by the fraud of the induced embody transaction, did not that the oral advantage by lat- of be taken cannot ter.” authority had no to rescind compromise sale or to enter into a or 1143, it 26 O. is said: In J. agreement after sale had been consum- jurisdictions “Moreover, in the courts some mated. broadly party have held is that defrauded urges only that excuse Plaintiff obligation diligence to not under an use presents reading for not con- ordinary falsity prudence to discover or 58 Inc., Ratz, supra, Conroy’s, v. court representations, on of per- liability not turns said: which whether ordinary prudence would have been son urges “Appellant the defendant here deceived, deceived, but whether as well as bound constructive be should by represen- and that one deceived fact knowledge defect in the actual may notwithstanding he tations recover might obvious, piano which or relying negligent in thereon.” diligence, by proper ad known have been Gates, M. See T. Co. v. Dover Mercantile verting apparently the doctrine caveat to Robertson, Kelly 231; repeatedly Okla. P. emptor. 136 277 v. held But been it has mislead, may 46; representation as well kla. 160 v. that a O Prescott 61 knowledge are even where means Brown, 428, 120 P. 30 Okla. not, hand, directly and they are as where In the case T. M. Dover Mercantile upon positive may a man act Gates, supra, Co. v. court said: notwithstanding representation fact, knowledge open fact that the means appears wPre guilty “When it that one has been him, representation if the is of a of intentional deliberate false state- character it, Mo. to induce and did induce ments, knowledge another Krum, enough. v. 100 Cottrill has been misled and influenced in his ac-r Rep. 549.” tion, 13 S. W. Am. St. escape legal consequences cannot by saying of his fraudulent conduct McLean, supra, said: the court In Cole v. might the fraud have been discovered Eraud, Bigelow 525- Law of party on “In whom he deceived exercised or- woman, ‘Every 526, though even dinary man or said: diligence.” care and is. illiterate, presumed know the signed weight authority support seems to written instrument of a contents Case, supra. the rule in the Gates announced knowledge him; presumption will but no See Kramer et al. K. O. Sons v. Lee charge way made fraiid in the of a stand (N. D.) Co. 373; 250 W. Cole McLean N. v. writing. regard contents (Ind.) 348; Conroy’s, Inc., sense, E. imprudent, N. v. in a it would No doubt be (Mo. App.) (2d) reading require 465; Hoyt Ratz S. W. read or to not accepting it; signing or before Chester, Va., instrument et al. v. First Nat. Bank of W. a deaf turn ear the courts would indeed a solely not (Tex. App.) 637; al. et Civ. 247 W. S. Colo sought get a contract rid of who man Mortgage (Colo.) rado P. Co. Wilson v. 263 (cid:127) ground were its terms on the (Ind. Jones al. v. et al. Hurst et supposed be. But the the them what App.) N. E. 449. listen, not refuse courts would relief, Hoyt contrary they give where et al. ease of Nat. would First charged the defendant Chester, fraud Appeals Bank of the court of Civil him, reading or in stat- contract of Texas said: leaving terms; upon, and also nature ing its guilty representations “One of fraudulent inserting agreed terms inor out terms recovery cannot defeat based thereon obviously upon. no_tagreed would This defense the one whom he has thus complaining par- in which the cases true ty guilty negligence defrauded failing has only read, in which read could could fraud, especially to discover printed difficulty, document guilty representations where the one of such print. containing much fine concerned was But on position in a is better to know the truth cases; to such not confined is the rule upon than the one who relies them.” very general.”" contrary it is the In Mortgage the case of Colorado Co. v. Sons, supra, & al. et v. Lee Kramer Wilson, supra, court the said: Supreme Dakota said: Court North of the argued by “It is counsel for defendant no evi- there was contended that “It that, plaintiff’s testimony true, even if warrant the sub- to fraud sufficient dence of they right rely still ant’s had no to on jury. defend- question This the to that mission of contention statements, because there fi- was no un- the The sustained. cannot be duciary relationship between them. We do disputed plaintiffs time and that each of shows evidence way. may not look on it this It sometimes different at a the contract friend, be easier to deceive a but the idea Roy place. Kramer The may that one filch from another city Eng New of in a bank in the signed it just stranger the because victim is a is a president the solicitation, of the of land at a

bandit repeatedly custom that courts have presi- company. the Thereafter defendant discountenanced. The offender will not be company took the dent contract defendant say heard to remedy that there no be- Roy bearing Kramer’s the signed said contract had been made judgment upon general verdict enter a by tiff, agent, Ellison, plain- in behalf of the effect, applied cause to the second to of as by.its and verdict it found that the de- action, plaintiff to the entitled possession fendant was entitled to the of possession and of $900, or its value in the sum judgment have for the that cancellation of given the defendant and addition thereto the sum of $690 the said note and damages for set forth in the counterclaim. price to secure said record, weAs view this col- return of the additional and the $589, amounting or in not be entitled to the should lateral notes same, entitled, plaintiff He will under the has collected the, event jury, for the verdict of the cancellation to said defendant account mortgage given thereof, proceeds and that said note and to secure the judgment have on his counterclaim in the against $690 sum and respects judgment all affirmed. other SWINDALL, OSBORN, RILEY, J.,C. BAYLESS, BUSBY, WELCH, JJ., con- CULLISON, J., ANDREWS, cur. Y. O. J., absent. Rehearing.

On McNEILL, O. J. Plaintiff contends that been entitled to a directed verdict cause of action first liability $1,771, being sum of the admitted (cid:127) Pierce, Rucker, Pollens & payment due on the note for the error. machine, threshing separator, the equipment and other' Sigler Jackson, defendant in error. described in said cause action. GIBSON, J. This action was commenced support. This contention is As without county by Murray district court of against liability this admitted al- Jackson, Prank tiff, against plain- referred to herein as leged damages by way counterclaim in Casualty United States Com- evidence, $8,111.88. the sum of Erom the pany, corporation, instructions, jury found, hereinafter proper referred to under defendant, alleged recover for an loss of defendant exceeded liability plaintiff’s policy. policy under an insurance The cov- amount admitted personal property $690. sum of It manifest that ered certain of the form fully thereby jewels threshing clothing specified machine note certain liquidated ¡character, defend- insured thereof the the same loss larceny, property, “burglary, robbery ant was entitled to a return of said theft or action, involved in any hereunder, property insured replevin, occupied been taken under premises or within writ assured value, $1,446.30. fixed at in the defined Declarations.” Rehearing denied. provisions policy Purther of tire were: OSBORN, J., BUSBY, RILEY, 0.V. any “The shall not be liable WELCH, CORN, JJ, GIBSON, concur. damage: or loss PHELPS, BAYLESS, J., participating. “(b) If the circumstances conditions or J., absent. materially changed of the risk are unless changes such by a are indorsed hereon and countersigned by an executive officer and duly representative authorized of the com- UNITED STATES CASUALTY CO. v. pany.” JACKSON. provides: 21No. Condition No. 25707. June * “* * provision or condition of No ¡by by except policy or altered waived shall be hereto and indorsement attached company; nor officer of an executive shall notice knowledge any agent, or per- by any by any agent possessed change in son, waiver effect a be held to policy. Changes in the writ- part of this declarations, if initialed portion ten gen- manager any manager, assistant company, shall bind eral personal company and assured. refer to the assured herein used to Jn-onoun gender.” regardless apply of number or shall follows: is as 2 in the Declarations Item containing premises “The location Okfuskee, is 703 South insured county,

Wewoka, Oklahoma.” Seminole February policy issued alleges from the moved Piaintiff Sulphur prior city of Wewoka address to the and mort- flues, the burned out condition and gages assigned him,

Notes

at was the Engle Daggs his shipped & canceled and to him. Defendant it was order tract No. 15? returned con- written in accordance notes, also asked to have collateral him, being exhibit order $589, amounting to which he had delivered Not serviceable. Answer: security additional as notes, pro- “Interrogatory what No. condition 5. to be for the returned and 56 case after the was the mandate been received re- on the time was taken writ of court, at the question presents trial itself plevin the time it under his contract? Answer: compared its condition jurisdiction by whether trial court had delivered delay reason of the in the rendition of said Practically judgment to render and cause entered the same when it was received.” condition judgment. the instant appears It that this case was filed delay jur- “Mere work a does not loss of county in 1923. district court It 1926, Canadian judgment.” render or enter isdiction to 34 C. jury. April '23, twice On tried to a J., p. sec. verdict favor returned Dumas, See Waters v. cross-petition 75 Cal. 17 P. on a error 685; Livingston, Iowa, Locher v. A filed was was ever that action. new trial 168 457 motion for 614; Mahan, 150 N. W. overruled, judgment Jerrett 20 but v. Nev. filed no 89, 17 Co., P. N. ; Pu1k v. Y. L. W. R. rendered verdict 374; Co., jury, 104 N. Y. until October Plaintiff in S. Fisher v. Portland R. etc., error, upon French, overruling 77 Ore. State motion for trial, being prior new Wash. rendition of P. 527. judgment, prosecuted appeal to this presiding judge the case at bar the court, being No. 179.84. That case case was

defendant. Defendant executed the price purchase bar, for- and of it must not secure the ease considering gotten The defendant refused we are engine developed pay upon representa- when the notes fraud based deceit and of tions the sign reason of the flues service defects the defendant induced firebox, pro- etc. The defendant the purchase contract wherein reading it, be- contract without warranties made no vided that the implica- time with- at the expressly he could read either kind

injured person' easily the cause duped. was too plaintiff W. F. signature the father), the farm of good It is not to answer trusted (Roy defense he where Kramer’s Kramer signed plaintiffs ought that not to have posi- papers. latter The testified the the statements of Bpth defendant’s because tively read. the he is unable that plaintiffs might learned of their fals- plaintiffs president of the the testified ity.” company specifically recited to were purchase engine warranties which he claimed price them the and the re- of said contract; order and .in the written embodied that of which turn given the collateral notes were he there no occasion insisted security pur- as priee. additional on reading order, testimony their the and the collateral chase In the event said plaintiffs both as to indicate reasons collected, said defend- notes have been then they made it and desirable that convenient pro- the ant be entitled to should receive accept representations sign his the or- taking ceeds thereof. der without the time read it or having it read! In the circumstances there (5079, O.C. S. O. S. Section 9500. is, think, justifying the we sub- evidence 1921), is as follows: question jury, mission the the fraud to say permitted by consent, use, “Rescission, and the is not not when effected plaintiffs accepted the only by accomplished not have the the can representations his part party rescinding, as to contents of the reasonable the following order.” diligence comply rules: the the case, Under the we are of facts this upon promptly, “First: He must rescind opinion question the fraud the discovering him to which entitle from facts the menace, duress, signing rescind, reference to mort- if free the notes he is influence, disability aware and is gages undue purchase price concerning the and, right rescind; engine question was a de- fact the jury. jury termination the The resolved must “Second: He restore everything' party he value has re- in favor of the defendant. contract; or him under ceived from jury defining The instructed court same, condi- must offer to restore likewise, to and party defendant elected issues un- tion less the latter such shall do unable, positively did rescind re- the contract sale in reference engine fuses to do so.” engine to the and tendered back given and demanded his notes and Mfg. Jones, Co. Hoke Holcomb including same, secure the collateral reference 102 Okla. notes also delivered to defendant com- right purchaser to a con rescind pany. specifi- In the fraud, instructions court said: this court because tract cally jury jury told the if the found desires, may, he so “In all if he cases to be these the facts and such rescission the fraudu- under received what he retain time, was done within a reasonable then the contract and seek redress lent which defendant would be entitled to cancella- by may counterclaim institute may purchase party tion of said notes the other in an action which contract, price him on the and for the return of institute the fraud by damages him reason of sustained notes, the collateral which amounted to $580'. concoction, an action but such in its jury The found verdict its the de- He contract. an affirmance of involves cannot fendant entitled' He can- disaffirm. affirm and both court, by instructions, The its repudiate demand res- contract and not finding; jury did not authorize paid, such and at he has of what titution same time subsisting interrogatories found its as treat contract practically he has suffered and recover the same condition of the fraud.” the trial re.ason it was when it was re- jury, by ceived. The interrogatories, requested were offered No instructions found that know party, from a review of the either and appears en- contents of the contract of when record it case was sub- tire that the same, representations and that proper instructions. mitted to the under to the condition of the before he remanded, with directions to case is

Case Details

Case Name: Dusbabek v. Bowers

Court Name: Supreme Court of Oklahoma

Date Published: Oct 30, 1934

Citations: 43 P.2d 97; 1934 Okla. LEXIS 346; 173 Okla. 53; 1934 OK 594; No. 20302.

Docket Number: No. 20302.

Court Abbreviation: Okla.