230 P. 689 | Okla. | 1924
This action was instituted in the district court of Greer county, on January 21, 1923, by the appellee, plaintiff in the lower court, against the appellant, defendant in the lower court, to recover $99, interest and attorney's fee, as evidenced by a certain promissory note due August 15, 1920, and duly executed by B.M. Jackson, appellant herein. The defendant filed an answer in which he denied that the plaintiff, G.O. Fennimore, was the owner of said note, and alleged that the pretended assignment or transfer made by the Reliable Hail Insurance Company, payee named in said note, to the plaintiff, Fennimore, was not in good faith, but made as a pretense or sham, and without valuable consideration. He further set forth in his answer that said note was given in payment of the premium of a certain hail insurance policy, issued by said insurance company to the defendant, Jackson, covering 90 acres of wheat, and further avers that said crop of wheat had been damaged by hail, and that due notice had been given of such damage to the insurance company, and that they had failed and refused to consider same, and that said insurance policy was worthless, and that the consideration for said note had failed.
The record discloses that the plaintiff lodged a motion to strike the major portion of the defendant's answer, and that on hearing of same before the Honorable T.P. Clay, district judge of Greer county, the motion was sustained, but the record fails to disclose any order or journal entry showing what the order contained; in fact, we assume that an order was made of record, disclosing the court's order. The case was tried before the Honorable Thomas A. Edwards, *135 assigned judge, and a jury was empaneled and sworn to try the case, whereupon the deposition of plaintiff was offered in evidence, in which he testified to the purchase of the note before maturity, and for a valuable consideration; and the note was introduced in evidence, and deposition of the secretary of the insurance company, J.E. Brown, was offered in evidence, who testified to the transfer of the note to the plaintiff herein, and thereupon plaintiff rested his case, whereupon the defendant was called as a witness and the appellant in his brief states that objections were made to practically all of his testimony, which was sustained by the court, and that he was not allowed to testify. However, he does not set forth the evidence tendered, or the objections made, and therefore the court is unable to determine the merit, if any, of this contention. At the close of the testimony of the defendant, Jackson, the defendant rested his case and counsel for appellee moved for a directed verdict, whereupon the court said:
"Gentlemen of the Jury: The court instructs you that in a case of this kind, where a negotiable note is executed and delivered and is sold to another before maturity, he takes it free of any defense against those who gave it. And in this case, if Mr. Jackson has any recourse, it will be as against the Reliable Hail Insurance Company. I will ask Mr. Van Wagner to act as foreman and sign the verdict which is submitted to you."
To all of which the defendant excepted. And in accordance with the above directions the jury returned a verdict for the plaintiff and fixed the amount of recovery at $99, with interest from April 28, 1920, at the rate of 10 per cent per annum.
The court rendered judgment against the defendant for the sum of $99, with interest from April 28, 1920, in accordance with the verdict of the jury, and for the further sum of $25 attorney's fee, and all costs of action. Motion for a new trial was filed and overruled, and the defendant appealed and set forth in his assignment of error the following specifications of error:
"(1) That the district court of Greer county, Okla., erred in overruling the motion of plaintiff in error for a new trial.
"(2) That said court erred in sustaining the demurrer of defendant in error to the evidence of the plaintiff in error.
"(3) That said judgment is contrary to the law and evidence and not supported by either."
The first proposition presented is the error complained of, wherein the court directed a verdict for the plaintiff and refused to submit to the jury the question of whether or not the plaintiff became a purchaser for value in due course, and in support of this contention the appellant cites the case of Continental Insurance Company v. Chance,
We do not understand such an allegation is sufficient to raise the question of good faith or failure of consideration, and, furthermore, all of this portion of the answer was evidently struck out by the court, as the record fails to disclose any effort on the part of the defendant to make proof of such allegation. Appellant cites the case of Bank v. Mayor,
Appellant in his second proposition urges that the note in question was nonnegotiable for the reason that it provided that in case of failure of payment at maturity the note should draw ten per cent. interest from date; however, the appellant admits that the decision of this court in the Union National Bank v. Mayfield,
And in the third proposition, appellant urges that any defense available against the Reliable Hail Insurance Company was available against the appellee, Fennimore, but the difficulty with this contention is that no defense was pleaded or proven which would have been available against the insurance company, and hence, we find no merit in such contention.
In the fourth proposition, the appellant contends that the court was in error in allowing interest at the rate of ten per cent. per annum, when the note only provided for ten per cent. interest. The pleading does not specifically raise this question and no proof was offered bearing upon it and appellee calls our attention to section 5096, Comp. Stats. 1921, which is as follows:
"When a rate of interest is prescribed by law or contract, without specifying the period of time by which such rate is to be calculated, it is to be deemed an annual rate."
This we think is decisive of the question raised and is ample to justify the court in rendering judgment for ten Per cent. per annum, and also calls attention to the case of National Life Insurance Company v. Hale,
"An agreement in a promissory note to Pay an additional interest on the principal of the note from its date, in case of default in the payment of principal or any interest coupon when due, is not a penalty, but is art agreement into which the parties have a right to enter, and is binding."
The fifth and last proposition urged by appellant is, that the court was in error in rendering judgment in the sum of $25 as attorney's fee. No question arose as to the validity of this item during the trial. It was not alleged that it was unreasonable; in fact, there is nothing pleaded which would apply to it, except the general denial, and we think that in view of the fact that it does appear to be reasonable, and was specifically agreed to and set forth in the note sued on, that the court was justified in rendering judgment for same.
Appellee cites the case of McClain v. Continental Supply Company,
"Where a note by its terms provides for $10 and ten per cent. of the principal and interest to be added as collection fee, in case payment of said note is not made at maturity, and suit is brought on said note, held, that it is not error to include in the judgment the attorney's fee stipulated for in said note."
We do not find this authority to be a parallel case; however, in this case, we think that if the court was justified in directing the jury to return a verdict for the plaintiff for the face of the note, with interest, that it would naturally follow that the court would be justified in rendering judgment for the attorney's fee provided for in the note, provided it appeared to be a reasonable fee.
This court recently in the case of Holmes v. Kress,
By the Court: It is so ordered. *137