173 P. 607 | Okla. | 1918
In this case, the Lamberts, defendants in error, sued Kuykendall, plaintiff in error, for $1,000, the alleged purchase price of a certain jack. The gist of the defense of Kuykendall, defendant below, was that one of the plaintiffs belowam C. Lambert, sold the jack in question to one Vennum, and that subsequently he (Kuykendall) purchased the jack from Vennum, and paid him the purchase price in full, and therefore was not indebted to Lambert in any sum for the jack. He pleaded and attached to his answer a receipt from Lambert to Vennum, acknowledging that Vennum had paid Lambert in full for the jack. Lambert replied, denying all the allegations of Kuykendall's answer, but also alleged that, if he executed the receipt pleaded in said answer, it was obtained by fraud, setting out the conditions under which the alleged fraud was perpetrated. Upon the issues thus framed the cause went to trial to the court and a jury. During the progress of the trial Lambert asked and obtained leave, over the objection of the defendant, Kuykendall, to verify his reply. The trial resulted in a verdict and judgment for the plaintiffs, and defendant, Kuykendall, appeals to this court.
There are 15 assignments of error, but it will not be necessary to notice all of them specifically.
1. The first assignment complains because the court refused to quash the service of summons.
The motion to quash was based on the fact that the summons commanded the sheriff to notify the defendant, Ora L. Kuykendall, that he had been sued by Sam C. Lambert et al., omitting to set out the name of the other plaintiff to the action, Lena Lambert. And it is gravely contended that the fact that the summons omitted the name of Lena Lambert, and only notified the defendant that he had been sued by Sam C. Lambert et al., rendered the summons fatally defective and the service thereof void. We know of no precedent or reason which supports this position. Counsel cite Lyman v. Milton,
2. It is next claimed that it was error for the court to permit the plaintiffs to amend their reply by verifying the same during the progress of the trial; the contention being that the unverified reply did not operate to deny the execution of the receipt pleaded by the defendant in his answer, but, when verified, it did have that effect. There might be some merit in the contention of defendant if the execution of *260 this instrument had really been made an issue in the case. But the reply admits the execution of the instrument, but seeks to avoid its effect on the ground that it was obtained by fraud, and sets out the conditions under which it was executed and delivered. And the plaintiffam C. Lambert, as stated by the defendant in his brief, as a witness in his own behalf, also admitted the execution of the instrument. Hence the plaintiff in fact derived no advantage from, nor was the defendant prejudiced by, the verification of the reply.
3. Again the defendant complains because the court permitted the witness, McKee, to testify to statements made to him by one Blackburn, the ground of the objection being that the statements of Blackburn were not made in the presence of the defendant, and therefore did not bind him. But the record shows that the plaintiff, on rebuttal, offered McKee to show that Blackburn, who was a witness for the defendant, had made statements out of court, contrary to what he had testified at the trial. And since a proper predicate had been laid in the cross-examination of Blackburn, by asking him if at a certain time and place he had not made these contradictory statements to McKee, which he denied, the testimony of McKee was properly admitted for the purpose of impeachment. Greenleaf on Evidence (14th Ed.) vol. 1, p. 561; Smith v. State,
4. Defendant next complains because the court, over the objection of the defendant, permitted the plaintiff to testify to the circumstances under which Vennum procured the receipt pleaded by defendant; the basis of this complaint being that none of the things testified to transpired in the presence of the defendant, Kuykendall. While it is true, there was no merit in this specific objection, for Kuykendall was not alleged to be a party to the fraud, and the fraud pleaded and proved was in no way dependent upon the presence of Kuykendall, and while the law is that a receipt is only prima facie evidence of the declarations and admissions it contains, and is open to explanation and contradiction, and the party giving it may show that it was obtained by fraud, or is in fact untrue (St. Louis, Ft. Scott Wichita R. R. Co. v. Davis,
"When an instrument which clothes another with the indicia of title to property is used by him, the equities of innocent purchasers are protected. For where the true owner holds out another or allows him to appear as the owner of, or as having full power of disposition over, the property, and thus leads a third person to do what he would not otherwise have done, the owner will not then be allowed to subject such third person to loss or injury by disappointing the expectations upon which he acted."
As between Lambert and Vennum, the fraud proved would have avoided the receipt. But he signed the instrument and put it into the hands of Vennum, and, although, on account of his negligence or indifference he may have been overreached by Vennum in the procurement of the receipt, yet the receipt was the direct means of enabling Vennum to overreach Kuykendall, and if either must suffer he who by his negligence or indifference made the fraud possible must bear the burden, for justice demands that, where one of two innocent parties must suffer, he who by negligence or indifference makes a fraud possible must bear the burden. And the fatal defect in the trial of this case is that the court failed to properly instruct the jury on this question, but instead instructed to the effect that if *261 Vennum obtained no title to the jack as against Lambert, he could convey no title to Kuykendall. This, under the peculiar facts of this case, was error.
The judgment is reversed, and the cause remanded for further proceedings not inconsistent with the views herein expressed.
All the Justices concur.