101 P. 1103 | Okla. | 1909
This proceeding is brought to reverse a judgment of the district court of Comanche county, and to secure a new *551 trial by Frank McMaster, defendant in the court below; the plaintiff, the City National Bank of Lawton, having secured a judgment against him on a note signed by himself and one Addison. The grounds relied upon by plaintiff in error for reversal may be briefly grouped under three heads; First, because the court overruled a motion of the defendant McMaster praying for an order requiring plaintiff to secure service upon and bring the defendant Addison into court; second, because the verdict and judgment were not sustained by sufficient evidence, and were contrary to law; third, on account of error committed by the court in the instructions. We will deal with them in the order stated.
The Supreme Court of the Territory of Oklahoma in the case ofOutcalt v. Collier,
"The common-law rule governing the enforcement of joint obligations, and making a judgment against one or more joint makers of a promissory note a bar to further proceedings against the other joint makers, has been so far modified by our statute as that obligations appearing to be joint will be presumed to be joint and several until such presumption is in some manner overcome; and, unless such presumption is in some manner overcome, any one or more of the joint makers of a promissory note may be proceeded against severally without prejudice to the rights of holder against other makers."
In the consideration of this question, Chief Justice Burford, who wrote the opinion of the court, reviewed our statutes which have the effect of abrogating the common-law rule as to joint obligations, and under which persons liable upon the same may all or any of them be included in the same action at the option of plaintiff. What is there said in reference to the note then before the court is equally applicable to the facts as disclosed in the case at bar:
"Construed by the rules of common law, the note sued on is a joint obligation, and not a joint and several one. Tied. Com. Paper, § 13; Rand. Com. Paper, § 149; Mason v. Eldred, 6 Wall. 238, 18 L.Ed. 783. A judgment against one joint maker will discharge the others. Rand. Com. Paper, § 1830. In Daniel, *552
Neg. Inst. § 1296, the rule is stated as follows: 'A judgment against one or two joint promisors is a bar to an action against both jointly, and is also a bar to an action against the other one. The joint parties cannot be sued separately, for they have incurred no separate obligation, and they cannot be sued jointly, because judgment has already been recovered against one who would be subject to two suits for the same cause; but, when the liability is joint and several, a judgment against one does not preclude procedure against the other or others, though, after judgment against one, all cannot be sued jointly.' Mason v. Eldred, 6 Wall. 231, 18 L.Ed. 783; Odell v.Carpenter,
See, also, Symms Grocer Company et al. v. Burnham, Hanna,Munger Company et al.,
To his liability upon the note defendant made two defenses: First. That the same was given to take up two other notes which had, in fact, been paid in full, and hence there was no consideration for the note in suit. The second defense was that the signature of Mr. McMaster was obtained by virtue of fraudulent representations made to him by the officials of the bank at the time the same was signed, in which he stated it was agreed that he should not be held bound or liable at all events to pay this note, but only to the extent that would be covered by certain assets which he then held in his hand belonging to the principal obligor thereon. Both of these contentions on the part of the defendant were testified to by him, and were denied by the officials of the bank. The evidence on the part of both parties having been fully presented to the jury under the conditions of this case, its verdict must be considered final, in accord with the rule frequently annunciated by this court that when controverted questions of fact are submitted to a jury and the evidence adduced is conflicting and contradictory, and there is competent evidence reasonably tending to support and uphold the verdict, and where the trial court approves the verdict and renders judgment in accordance therewith, and a new trial is refused, this court will not disturb *554
the verdict of the jury and the judgment of the court on the weight of such evidence. Stickler v. Gitchel,
We have carefully considered the instructions which were refused by the court in connection with these which were given. In our judgment instructions 2 and 3 given by the court substantially covered the two which were requested by defendant, and the refusal of the court to give requested instruction No. 3 was not error by virtue of the statute covering the same proposition quoted above. The contentions of the defendant were set out in full by the court in the instructions given, and were so stated as to cover the issues raised by the pleadings and by the evidence, and in our judgment fairly presented to the jury for its consideration defendant's claims.
We have carefully gone over the entire record in the case, and to our minds there is no reversible error contained therein. Having reached this conclusion, it follows that the judgment of the lower court must be affirmed.
All the Justices concur.