# Conwill v. Eldridge

> Supreme Court of Oklahoma · December 10, 1918 · 71 Okla. 223

URL: https://www.frixlaw.com/law-library/cases/3830871

## Case

- **Full name:** CONWILL v. ELDRIDGE Et Al.
- **Court:** Supreme Court of Oklahoma
- **Decided:** December 10, 1918
- **Citations:** 71 Okla. 223; 177 P. 79; 1918 OK 705; 1918 Okla. LEXIS 923
- **Precedential status:** Published
- **Opinion:** Opinion of the court by Tisinger
- **Judges:** Tisinger, Hardy
- **Cited by:** 32 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/3830871

## Opinion text

TISINGER, J.
J. D. Conwill brought suit in the district court of Texas county on August 17, 1909, against Wm. H. Eldridge, seeking to recover the sum of $1,117.74, the amount of the principal and interest of two promissory notes alleged to have been made and executed to him by the defendant. This suit was defended by Marion Eldridge as guardian for the defendant Wm. H. Eldridge, and resulted in a verdict and judgment in favor of the defendant. An appeal was taken to this court. Pending the appeal, the defendant Wm. H. Eldridge died. On motion of the plaintiff, the cause was revived in this court against Marion Eldridge and Benjamin F. Eldridge, as administrators of the estate of Wm. H. Eldridge, deceased, and thereafter on March 11, 1913, this court rendered judgment, reversing the judgment of the district court of Texas county and remanding the cause for a new trial. Conwill V. Eldridge, 35 Okla. 537 , 130 Pac. 912 .
Plaintiff then amended his original petition by alleging the death of the defendant Win. H. Eldridge and the appointment and qualification of the defendants Marion El-dridge and Benjamin F. Eldridge as admin-i.-trator:; of his estate. These defendants filed their amended answer, and the defenses alleged therein necessary to a determination of the issues involved on this appeal were as follows;
1. A general denial of the allegations contained in plaintiff’s petition.
2. A denial that the notes sued on were executed by the deceased, Wm. H. Eldridge.
3. The allegation that, if said notes were executed by Wta. H. Eldridge, they were without consideration and void.
4. The allegation that, if the notes were executed by Wm. H. Eldridge, they have been paid in full.
5. • That the consideration of the promissory notes sued on, if any were executed, was. the purchase price of one jack, and that plaintiff secured the execution of the notes by false and fraudulent representations that the jack for which they were executed was sound and in every way and manner suitable for breeding purposes, when In truth and in fact he was entirely and wholly
*224
worthless for breeding purposes and without value, all of which facts were known to the plaintiff at the time of his making said false and fraudulent representations and were unknown to Wm. H. Eldridge; that said representations were made for the purpose of deceiving and defrauding said Wm. H. Eldridge, and he did rely upon the same, and was thereby deceived and defrauded; that plaintiff was enabled to accomplish his fraud by reason of the senility and weakness fo the said Wm. H. Eldridge, who at the time the notes sued on in this case were executed was mentally incompetent and incapable of entering into a valid contract; that the jack has died since the execution of the promissory notes, without fault of the said Wm. H. Eldridge or defendants, and for that reason they are unable to offer to return him to plaintiff.
6. By alleging that the Percheron horse described in the notes sued on did not form any part of the consideration for which said notes were given, but that said horse was paid for by the defendant Wm. H. Eldridge in full prior to the time of the execution of said notes.
The second trial of the ease resulted in a general verdict for the defendants. Plaintiff filed his motion for new trial, which was overruled by the court, and he brings the case here by petition in error and case-made.
When the defendants presented their amended answer, the court permitted it to be filed, but struck therefrom the second ground of defense, which denied the execution of the notes sued on. And, when plaintiff undertook to make out his case, the court relieved him of the burden of proving the execution of the notes. Clearly, the action of the court in so doing was authorized by defendants’ answer, for it, in effect, admitted their execution. It will be observed that, in the separate defense to the effect that the notes were without consideration and void, that they had been paid, and that they were obtained by fraud, are all based on one hypothesis, “if they were executed.” It will also be observed that, in the separate defense, that the notes were obtained by fraud, the defendants alleged that plaintiff secured the execution and delivery of the notes by certain false and fraudulent representations therein set out, and they further alleged that the jack, “which was the consideration of the notes,” had died “since their execution.” The defendants further plead, in the eleventh separate paragraph of their answer, without any qualification, that the Percheron horse described in the notes did not form “any part of the consideration for which the notes were given,” but that said horse was paid for by the defendant Wm. H. El-dridge, in full, “prior to the time of the execution of said notes.”
These admissions of the execution of the notes were sufficient to justify the court in relieving plaintiff of the burden of proving it. Rightly interpreted, the allegations of the answer constituted in several instances an admission of the execution of the notes, and an attempt to avoid its effect by aver-ments of fraud in their procurement, of want of consideration, and of payment. The answer of the defendants, taken as a whole, seems to be in the nature of a plea of confession and avoidance. To all practical intents and purposes, it admits that plaintiff had a cause of action, but avers that it had been discharged by some subsequent or collateral matter affirmatively alleged therein.
Section 4745, Revised Laws. 1910, which permits a defendant to set forth, in his answer, as many grounds of defense as he may have, whether they be such as have been theretofore denominated legal, or equitable, or both, was a part of the Code of Civil Procedure of the State of Kansas which was adopted as the Code of Civil Procedure of the Territory of Oklahoma by the Legislative Assembly of the Territory in 1893. Statutes 1893, § 3972. It took effect and became of force after its publication in the Statute Book, which, according to the certificate of the Secretary of the Territory, was it of it. It seems also to be the nue adopted by the highest courts of the states of Louisiana, Minnesota, Missouri, and Wisconsin. But, under the well-recognized rule hereinbefore stated, that where a statute is taken from another state and has, at the time it is taken, been construed by the high'est court of that state, it is presumed that .the legislative body which adopted the statute also adopted the construction which had been placed on it by such highest court, we •are persuaded to follow the minority rule and adhere to the interpretation and construction of the statute give by the Supreme Court iof Kansas from which state our Code of Civil Procedure was taken. And we are the more inclined to follow such minority rule when it is supported by authority and what we consider the better reasoning.
In Thompson on. Trials (2d Ed.) § 197, 'reads as follows:
“The pleading® are drawn by the attorneys of the parties, except in those few cases where .parties are foolish enough to endeavor to act as their o.wn attorneys; and no- better illustration < f the principle under discussion could be furnished than is found in the binding nature of tile admissions in . the pleadings. Such admissions are evident-iary in their character, are an absolute estoppel upon the party making 'them, unless he seasonably withdraws them by amendment, and obviates the necessity of the other party proving the facts thus admitted. Much could be written upon this subject. There are implied admissions as well as express admissions. If has been held that, where an answer sets up several distinct defenses, a denial in one is qualified by an admission in another — -which is merely an application of the rule that a party’s pleading, like any other written instrument, is to be construed as a whole, and. in case of any incongruities or contradictions, is to be taken most strongly against the pleader. If therefore a party in one count of an answer denies a fact alleged in the petition or complaint, and in another count admits it. the admission, and not the denial, will he taken to be true. It will estop him, and the plaintiff will not be bound to prove the fact thus admitted. Eor instance, where the action was replevin for unlawfully taking the plaintiff's goods, and the answer contained two defenses: (1) a general denial of the allegations iof the 'complaint, and (2-) a justification of the taking under a levy upon execution — it was held that the answer admitted the taking for the purposes iof the trial, atad tha1' to that extent the second defense vacated the first. In another case, the same court,, applying our same principle held that a general denial in iome count of the answer was inconsistent with special matter alleged in another count, and was to be' construed as modified by the latter. Thia principle has been applied by the Supreme Court of the United States in a case originating in the 'Circuit Qolunt of the United States for the District of Minnesota; the court holding 'that the admission of the plaintiff’s title contained in an equitable defense set up in the third count iof the answer overrode and controlled a denial of the plaintiff’s title in the first count, and was conclusive upon the question of title.”
Bliss on Code Pleading, § 341, reads in part: “There can be no denial of a statement absolutely admitted upon the record.” The rule which we have stated is given a bnoader and more extensive application in the general rule announced in 8 Corpus Juris, p. 924, § 1210:
“* * * Where defendant answers denying the execution of the instrument but alleging matter In avoidance of its legal effect, or extrinsic matters of defense tods answer will be treated as admitting the making iof the instrument as charged in plaintiff’s pleading.”
Tbe rule which we have announced as the “minority rule” seems also to be supported by this court in the care of Schuber v. McDuffee, 67 Okla. 160 , 169 Pac. 642 . The fourth paragraph of the syllabus reads:
“Although the answer of defendants contained a general denial, this was qualified by other aillegali|i'On'/S therein contained, which admitted all the essential facts necessary to authorize a judgment in plaintiff's favor, and it was not error to sustain a motion for judgment on the pleadings.”
The practice under our Code of Civil Procedure does not recognize fictions (section 4767, Revised Laws 1910), or that a verified pleading, as was the defendants’ answer in the instant case, can contain .anything other than a truthful statement of the facts relied ion by the pleader, set forth “in ordinary and concise language, and without repetition.” Section 1745» Revised Laws 1910.
We can see no good reason why the allegations of a verified pleading, even if
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not conclusive against the pleader, should not be treated as admissions against the person or persons making them, and that as between the denial of a fact alleged in the complaint and the admission of the same fact in some other part of the answer, in a separate or special defense, the admission should not be taken as true so as to render it unnecessary for the plaintiff to establish that particular fact by testimony.
Having admitted the execution otf the notes, the burden of invalidating or avoiding tibemi was east on the defendants; aindl whether they successfully carried this burden so as to authorize the general verdict of the jury in, their favor, or failed to successfully carry it, is the determining question in the case.
A careful examination iof the record shows chat the only defense relied on by the defendants at the trial of bb.e case was that the motes sued on were without any consideration to support 'them. All other defenses were either eliminated by the court or abandoned by the defendant. It is true that the defendants pleaded payment and the court submitted to the jury the question as to whether or ndt the notes had been paid; but we lliiave been unable to find in tbe record any evidence authorizing the submission of this issue ibo the jury. A careful review of all the testimony stows that the only question as to payment was the possibility of payment made by the deceased defendant, Wan. H. Eldridge, before the notes were executed. The evidence that the consideration of the notes was a certain Percheron stallion sold by the plaintiff to the deceased defendant was uncpniroverted, and defendants attempted to show that the stallion had been paid for before the motes were executed, as alleged by them in the eleventh paragraph of their answer. If they had succeeded in establishing such payment, the notes Would, of course, have been without any consideration to support them and, in the hands of the original holder, would have been void.
There was no evidence whatever to sustain the allegation made by the defendants in their answer that the jack was the consideration for which the notes weire executed. While this seems to have been one of the contentions of the defendants, as it appears hypothetically stated in their .answer, yet the¡y 'offered m proof to «sustain it, nor to overcome the positive evidence introduced in behalf of the plaintiff that the notes were given for the Percheron stallion. Tt is apparent that they did not rely upon the defense of a failure of consideration because of the sexual incapacity and general worthlessness of the jack, for no evidence tending to sustain such a defense appears anywhere in the record. Neither did the count submit that issue to tbe jury. The only reason why thie jack figures in the case, as made by the evidence, at all is because of plaintiff’s testimony that a certain executory agreement1 made by him with 'the deceased deffenid'ant, W.m. H. Eldridge, w|as never carried out, and that, before the notes sued on were executed, the agreement was abrogates arid a new and different one made, at the request lof the deceased whereby the notes sued on were given for the Percheron stallion named in the agreement, and the property which, by the terms of the agreement, was to have been given by the deceased to the plaintiff in exchange for the stallion was given in exchange for a jack instead.
The executory agreement referred to was as follows:
“Dated September 25, 1907.
“I agree to sell W. H. Eldridge one Percheron stallion, six years old, weight ab.ont 1,600 pounds, and I agree to accept in payment of said stallion one stallion 11 years old, weight about 900 pounds, eight spring mule colts and two pony mares and a note for one hundred dollars, due in one year, the stioek to be delivered November 1st.
“J. D. Oonwill.”
Thie record shows that the agreement was p¡ riially carried out. That is, the Percheron stallion was delivered to- Eldridge, and all of the stock, with the exception of the eight young mules, were delivered to Cornwall. When Ooriwill went to Eldridge’s place to get .the young mules, and before they were delivered, Eldridge requested that he be released from the agreement and that he be permitted to give his promissory notes for the Percheron staPion, which was granted by O.onwill, and the notes sued on were tihen ekecinted. Eldridge also offered give in exchange for a jack owned by Oonwill the live stock he had agreed to give him for the stallion. This offer was accepted and the trades were closed, Oonwill ■baking away with him the eight yciung mules.
■Counsel for defendants contend that the evidence showing the facts as herein outlined was the testimony of the plaintiff, and that as he was an incompetent witness to -testify in his ioiwii behalf in respect to any transaction or communication had personally by him with the deceased under thie inhibition of section 5049, Revised Laws 1910, section 4509, Statutes 1903, and as objection was made to his competency on this ground, his testimony should n.ot be considered by this court on 'appeal. While the
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testimony of the plaintiff wias- not the only evidence showing the abrogation of the ex-ecutory agreement and the making of the other trades, and while such other evidence was in no way controverted, yet the plaintiff was properly permitted to testify in regard thereto, for the reason that the defendants waived the protection of the statute aind opened the door to redirect examination tiouiobing the whole matter by eliciting on cross-examination of ibhe plaintiff testimony relating to tibíese very transactions. It would be a harsh rule that would permit the personal representatives of a decedent to bring out on cross-examination only such testimony relating to transactions or communications had by the witness with -the decedent as would accomplish their purpose, by establishing such facts as they desired to prove, and seat the lips of the witness as to other matters connected with such teansacition® or communications. The statute under consideration was taken from the state of Kansas and was construed by the .Supreme 'Court of that state prior to the time it was made a part rof the la-ws of 'the territory of Oklahoma in the case of Niccolls v. Esterly, 16 Kan. 32 , as follows;
“N|ow the testimony of the plaintiff in his own behalf was in reference te the same transactions of which he had testified at the instance of defendant. And while, if the defendant had so chosen none of this testimony could have been admitted, yet, having interrogated the plaintiff concerning these matters, and having obtained some of the fadts concerning .them, he could not thereafter
mtlrject to the plaintiff’s giving
all the facts. By introducinir part, he opens •the door to all. Jnrt as .a party may noit introduce his own statements in his oiwn behalf, yet if his adversary draws out a part of a conversation he may introduce the balance. The principie is general that where -a particular witness, or a certain kind of testimony may be excluded, if the party who has the right
to
insist up
on the
exclusion waives that right, and himself calls the witness or introduces) the testimony, he cannot, after he has obtained What he desires, insist upon the exclusion, so far at least as to prevent a full development of the matters which he has partially presented.”
Ttlitis constTuctiiou has been adhered to, so far as we have been a’ble to ascertain, ever since the decision in the Niccolls v. Esterly Case wtas rendered. Plowman v. Nicholson, 81 Kan. 210 , 105 Pac. 692 , 106 Pac. 279 .
In the case of Poole v. Poole, 96 Kan. 84 , 150 Pac. 592 . Ann. Cas. 1918B, 929, the fifth paragraph of the syllabus reads:
“The incompetency of.a witness to testify concerning communications or transactions had with a person since deceased is waived by the objecting party showing on cross-examination the fact that such a communication or transaction occurred.”
iSome of the other authorities supporting this rule are: In re Wharton, 132 Iowa, 714 , 109 N. W. 492 ; Lange v. Klatt, 135 Mich. 262 , 97 N. W. 708 ; Craig v. Norwood, 61 Ind. App. 104 , 108 N. E. 395 ; Comstock’s Adm’r v. Jacobs, 89 Vt. 133 , 94 Atl. 497 , Ann. Cas. 1918A, 465; Moe v. Paulson, 128 Minn. 277 , 150 N. W. 914 ; Arnold v. Cocanaugher, 170 Ky. 712 , 186 S. W. 488 ; 40 Cyc. pp. 2342-2344.
And in the case of Cox v. Gettys, 53 Okla. 58 , 156 Pac. 892 , this court held that, where a party to an action 'takes the deposition of his adversary with reference to certain transactions had with a deceased person, the in-eompetemey of
.such
adversary party to testify touching the whole matter is waived, whether thie deposition was ever completed and filed in court lote not.
in the instant case, the plaintiff testified to facte which, according to the terms of the promissory notes sued on, accelerated the maturity jotf the one on which suit was brought before it was due. This testimony was not in respect to an ¡y transaction or communication had personally by him with the deceased defendant. The defendants then cross-examined him concerning his transactions with deceased, had him identify the executory conti'act of sale as
.the
one signed by him and given te the deceased, and introduced 'the sarnie in evidence. By
dO'ing m they
waived
ithe
.protection the statute gave them and opened the door for a redirect examination touching the whole matter.
We have carefully searched the record in this case and have been unable to find any evidence reasonably tending to support the general verdict rendered by the trial jury in favor of the defendants. Admitting
the
truth of all tibe evidence which was given in their favor, together with such inferences and conclusions as might be reasonably drawn from it, there was not sufficient evidence to authorize the verdict.
At the 'ConelusiMi of all the testimony, the plaintiff requested the court to peremptorily misbruct .the jury to return a verdict in his favor for tibe full amount sued .for, which request the cpiurt refused.
As, under the pleadings, the plaintiff was entitled to recover unless the affirmative defenses of .the defendants were sustained, and as nn evidence was produced reasonably tending to support such defenses, the court committed error in not peremptorily instructing the jury to. return a verdict in favor of the plaintiff in accordance with his re
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quest. Stock Exchange Bank v. Williamson, 6 Okla. 348 , 50 Pac. 93 ; Harrah v. First National Bank, 26 Okla. 620 , 110 Pac. 725 ; Solts v. Southwestern Cotton Oil Co., 28 Okla. 706 , 115 Pac. 776 ; Offutt v. Wagoner, 30 Okla. 458 . 120 Pac. 1018 ; Fitzpatrick v. Nations, 30 Okla. 462 , 120 Pac. 1020 .
The judgment of the trial court is revers-eu, and this cause remanded, with instructions to grant a new trial and proceed m accordance with this opinion.
All the Justices concur, except HARDY, J., who dissents.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/3830871. Public record. Not legal advice.