152 P. 1103 | Okla. | 1915
The defendant below set out a copy of the release purporting to be signed by the plaintiff, and alleged that it was executed by her. The reply was not verified, and therefore admitted the execution of the written instrument. Rev. Laws 1910, sec. 4759, provides:
"In all actions, allegations of the execution of written instruments and indorsements thereon * * * shall be taken as true unless the denial of the same be verified by the affidavit of the party, his agent or attorney."
In construing this statute, it is held in Harwick v.Atchison,
"Where plaintiff founds his claim to the property in controversy upon a certain note and chattel mortgage, and gives a copy of said note and chattel mortgage in his * * * pleadings, and makes it a part thereof, and the defendant does not deny the execution of such note and mortgage by affidavit, it is not necessary for the plaintiff to prove the execution thereof or the amount due." *354
In Dunn v. Claunch,
In M., K. T. Ry. Co. v. Hancock,
"Since defendant in error's reply was not verified by their affidavit, their denial therein of the execution of the special contract was without effect, and its execution stands admitted (section 4312, Wilson's Rev. Ann. Stats.), and the burden of showing the want of consideration sufficient to support the instrument lies upon them who seek to avoid it (Wilson's Rev. Ann. Stats., sec. 774)."
And the same construction is put on the statute inGuthrie Western R. R. Co. v. Rhodes,
The Supreme Court of the State of Kansas, from which state this statute was adopted, gave the same construction to it long prior to its adoption in this state, in an unbroken line of decisions, beginning with Gaylord v. Stebbins,
It was therefore settled by a long line of uniform decisions rendered by the Supreme Court of Kansas prior to the adoption of this statute by Oklahoma from that state that allegations of the execution of a written instrument, which instrument, or a copy thereof, is attached to the pleading, are taken as true, unless denied by the affidavit of the party, his agent or attorney, and this rule has also been followed by the Supreme Court both of the Territory and State of Oklahoma. But the defendant in error contends that where, in such case, an unverified pleading is filed, the only remedy is a motion to strike such pleading from the files, and, if this is not done, that it is a waiver of the failure to verify.
In the case at bar it is obvious that a motion to strike the reply from the files must have been refused. The plaintiff had the right, in her reply, to admit that she signed the release, but insist that it was obtained by fraud, or was without consideration, and this is the legal effect of the unverified reply. In Berry v. Geiser Mfg. Co.,
The defendant in error relies on Doughty v. Funk,
"The use which plaintiff in error has attempted to make of some expressions to be found in the opinion of the court inThe Genesee Chief v. Fitzhugh, 12 How. 443 [13 L.Ed. 1058], and in other cases, affords a good illustration of the soundness and wisdom of the rules laid down respecting the unauthorized application of words used in one particular sense to a purpose, or subject, or circumstances entirely different. The rule on this point is well settled. It is to confine a dictum to the particular circumstances of the case in which it was spoken."
And see Cohen v. Virginia, 6 Wheat. 264, on 399, 5 L.Ed. 257;Joplin Merc. Co. v. U.S.,
Payne v. Flourney,
The cases of M., K. T. Ry. Co. v. Hancock,
This raises the question: On whom was the burden of proof in regard to this release? Had the plaintiff verified her reply, the burden would have been on the defendant to prove its execution; but, when this was admitted by the pleadings, it then became incumbent on the plaintiff to prove her allegations of fraud and want of consideration.
The rule is well settled that fraud is never presumed, and that, where a written contract is attacked on that ground, the contract will be upheld, unless the allegations of fraud are established by clear and convincing evidence. In Moore v.Adams,
"In cases where fraud is alleged in the procuring of the execution of written instruments or deeds, the proof must sustain the allegations by a preponderance of the evidence so great as to overcome all opposing evidence and repel the opposing presumptions. It should be of such weight and exigency as to satisfactorily establish the wrongful conduct charged; honesty and fair dealing as a rule being presumed. When it lies within the power of a party to an action to produce evidence upon an issue, and he fails, the presumption follows that the evidence, *360 if produced, would be unfavorable to the cause of such party."
This rule is followed in Herron v. M. Rumley Co.,
In St. L. S. F. R. Co. v. Chester,
"This court has evinced no hesitancy in setting aside releases in personal injury cases, when procured by fraud and misrepresentations as to material matters, or for other reasons sufficient in law, as may be observed by a reference to the following cases: St. L. S. F. R. Co. v. Richards,
In the case at bar there is no evidence at all of fraud, and the burden was on the plaintiff not only to introduce evidence on this issue, but such evidence must be clear, strong, and convincing.
On the issue of want of consideration the burden was also on the plaintiff. See M., K. T. Ry. Co. v. Hancock,
"Where the execution of a written instrument is admitted, but want of consideration therefor pleaded, the burden is upon the party executing the instrument to prove by a preponderance of the evidence the want of consideration."
We therefore recommend that the judgment be reversed, and the case remanded, with directions to grant a new trial.
By the Court: It is so ordered. *362