The opinion
*1118 WILLIAMS, Justice
(dissenting).
For reasons set out below, I am unable to agree with the majority opinion, herein. , The record shows that in August, 1947, McNutt entered into a written agreement ' with Cooke by the terms of which McNutt was to engage in the business of buying and selling icattle on behalf of Cooke; Cooke was to furnish the money, McNutt was to do the actual trading, and was to be paid ‘ ten cents per hundredweight as his compensation.
In December, 1947, this agreement was terminated by Cooke, as he had a right to do by its terms, and an inventory was taken of the cattle then remaining in McNutt’s . possession which had been purchased under the agreement; there were 126 head, and they were all returned to Cooke, the exact date being in dispute.
On January 22, 1948, plaintiff Townley •filed his petition in the case at hand, alleging that he held two promissory notes and chattel mortgages securing the same from McNutt; one note being for $2,400 executed in June, 1947, and filed for record in August, 1947, and the other for $3,950 executed on September 12, 1947, and filed for record on January 3, 1948. Plaintiff alleged that the mortgages securing the notes described a total of 38 cattle, including those here in dispute. He alleged that Cooke, with both actual and constructive notice of the mortgage, took possession of the cattle, on January 15, 16 and 17, 1948, promising McNutt that he would pay Townley what McNutt owed him.
Immediately before trial, defendant ■Cooke requested permission to amend his answer and cross-petition to allege fraud in the execution of the $3,950 note and mortgage, in that the mortgage could not have been signed on September 12, 1947, because McNutt was in California at that time. This request was denied.
Five witnesses testified for plaintiff, the .last' one called being Townley himself. .Near the end of his testimony, Townley admitted that the $3,950 note and mortgage were not executed on September 12, 1947, as he had' stated in his petition,- but that they were. actually signed on January 2, 1948, the day before the mortgage was filed for record.
At the conclusion of plaintiff’s evidence, defendant Cooke again requested permission to amend his answer and cross-petition to allege fraud on the part of McNutt and Townley" in the execution of the $3,950 note and mortgage, and further requested permission to amend his pleadings to conform to the proof in this regard. These requests were also denied.
I think these requests should have been granted. See McAllister v. Ealy, 98 Okl. 223 , 225 P. 146 , wherein the court said:
“In actions at law and where a charge of actual fraud is involved in suits of equity, not only is fraud never presumed, but it must be affirmatively alleged and proven by the party, who relies on it.”
See also Stafford v. McDougal, 171 Okl. 106 , 42 P.2d 520 , wherein the court said with regard to fraud when relied upon as a defense:
“Fraud is never presumed, but it must be affirmatively alleged and proven by the party who relies on it, and cannot be inferred from facts which may be consistent with honesty pf purpose.”
To the same general effect is 21 Am.Jur., Fraud and Deceit, section 252.
An examination of the court’s instructions discloses that the court referred to the .“mortgage given on September 12, 1947”, and this in the face of the fact that plaintiff’s own uncontradicted evidence was that it was signed on January 2, 1948. My conviction that defendant Cooke should have been allowed to amend his answer and cross-petition so as to conform to the proof and plead fraud is supported by the following facts which appear from the record: McNutt testified that the. unusual 28 cow deal was made with Cooke on January 14, 1948; however, plaintiff Townley testified .that McNutt told him on January 2, 1948," that Cooke was going to pay him (Townley) what McNutt owed him, as if the deal had already been made; furthermore,- at that time (January 2, 1948) Cooke and Townley had never met. Also, there is no satis fac *1119 tory explanation in' the record as to why McNutt two weeks after he had formally severed all business relationships with Cooke, should expose himself "to criminal prosecution (for disposing of mortgaged property) by turning over to Cooke the cattle upon which Townley held a mortgage, with no written memorandum or agreement whatsoever.
The amendment which Cooke requested permission to make meets the requirements of the following rule set out in Doyle v. Oklahoma Press Pub. Co., 206 Okl. 254 , 242 P.2d 155 , 157:
“The principal limitations upon the rule (i. e., that amendments will be allowed in the furtherance of justice) are that the amendment must relate to the time, or prior thereto, of filing of the petition, and it must not state a new cause of action. It is at this point that difficulties arise and differentiations are made as each new, varied situation is presented. In 41 Am.Jur., Pleading, section 304, it is said: ‘ * * * The test is not whether, under technical rules of pleading, a new cause of action is introduced, but rather, the test is whether an attempt is made to state facts which give rise to a wholly distinct and different legal obligation against the defendant. * * * ’ ”
In the case at hand, defendant Cooke had-pleaded a general denial. It is elementary that such plea amounted to a denial of every material ingredient of plaintiff’s claim, one of which was the existence .of a valid mortgage from McNutt to Townley covering the cattle involved. Although by the terms of the quoted rule from Stafford v. McDougal, supra, fraud must be affirmatively pleaded to be available to the defendant, it is to be noted that in this case a plea of fraud is not in any way inconsistent with the general denial previously pleaded, since, the fraud allegedly involved here goes to the existence and validity of the alleged mortgage. Such being the case, the amendment should have been allowed, since it relates “to the time, or prior thereto, of filing of the petition” and does not “give rise to a wholly distinct and different legal obligation”.
The record further shows that the check which Townley allegedly gave McNutt as a loan (for which he allegedly took a note and mortgage" in the amount of $3,950 almost 4 months later) bore notations indicating that it was given for the purchase of 25 cows, not for a loan on 24 cows (the number specified in the $3,950 mortgage). Defendant Cooke never saw this check before the date of trial.
In the case at hand, there can be no doubt that if the purported mortgage were fraudulently executed (that is, if there were no bona fide mortgage indebtedness), plaintiff would not be entitled to recover as against defendant Cooke. Plaintiff’s complaint that he would have been taken by surprise by the amendment carries little weight when it is considered that he himself admitted on the witness stand in effect that his previous statement' in his petition as to tire date of the execution of the $3,950 note and mortgage was not true.
After judgment, defendant Cooke filed a motion for new trial on the ground, among others, of newly discovered evidence. This evidence was set out by affidavit attached to the motion, and most of it went to the defense offered in the amendment. It included the following:
Defendant McNutt testified that the $3,950 check from Townley was deposited in a bank at Britton, Oklahoma. 'Subsequent investigation showed that no such deposit was made. McNutt further swore that he had written checks aggregating $3,950 .against the same bank for the purchase of cattle covered by the purported mortgage during a designated period of about ten days. Subsequent investigation showed that no such check or combination of checks had been written against that bank account in the amount of $3,950 during the period in question. On the 10th day of September, 1947, McNutt purchased 25 cows from one Floyd Lipps for $3,750, taking delivery on September 11 or 12; on September 11 McNutt withdrew $3,750 from the Cooke-McNutt bank account in an Oklahoma City bank; (witness De-Laughter, bookkeeper for the Cooke-Mc-Nutt enterprise, had previously testified that his books showed a sale of cattle for *1120 $3,950 on September 12, 1947); on September 12, 1947, the $3,950 check written by Townley allegedly as'a loan to McNutt on 24 cattle, but bearing notation indicating it was for the purchase of 25 cattle, was deposited in the -Cooke-McNutt bank account.
' I have previously shown that Cooke was refused permission to plead the allegedly fraudulent scheme of Townley and McNutt as a defense, and it may logically be assumed that the court overruled the motion for a new trial because most of the newly discovered evidence went to the defense Cooke had not been allowed to plead. I believe that Cooke should have been allowed to plead such defense, in the furtherance of justice. Such being the case, the motion for new trial should have been granted. The newly discovered evidence meets the requirements of 12 O.S. 1951 § 651, subd. 7. See Holly v. Holly, 174 Okl. 626 , 51 P.2d 527 ; Holmes v. Chadwell, 169 Okl. 191 , 36 P.2d 499 .
It may be suggested that the newly discovered evidence summarized above was merely cumulative to evidence produced at the trial; insofar as it merely impeaches the witness McNutt, this is true; however, it also explains for the first time what the $3,950 check from Townley was really for (payment for 25 head of cows from Mc-Nutt, which McNutt had purchased the day before from Floyd Lipps).
The record conclusively demonstrates that defendant Cooke was surprised at the trial in the following particulars: he could not have known that plaintiff would give testimony that the allegation in his petition that the mortgage was executed on September 12, 1947, was not true and that it was really executed on January 2, 1948; he could not have known that the $3,950 check from Townley to McNutt bore a notation indicating that it was for the purchase of 25 cows instead of for a loan on 24 cows as alleged; therefore, he had no logical reason for' suspecting that there might be a connection between the $3,950 check dated September 12, 1947, from Townley to Mc-Nutt and the sale on September 12, 1947 of 25 head of cows for $3,950, said cows presumably being the ones purchased one or two days before from Floyd Lipps. Also, he could not have known that McNutt would testify, that he (Cooke) agreed to take the 28 cattle and pay Townley what McNutt owed him, if that were not true and as he contended it was not.
Amendments to pleadings are to be liberally allowed in the furtherance of justice; see 71 C.J.S., Pleading, §§ 275b, 281, 285d and 294; Beaty v. Armstrong, 95 Okl. 109 , 218 P. 516 ; and Shade v. Miller, 131 Okl. 23 , 267 P. 626 .
Under all the peculiar facts and circumstances in this case — in view of the unusual and unexplained transaction by which Cooke allegedly got possession of the cattle, the fact that the $3,950 check bore notations indicating it was for a purchase rather than a loan, the new and more logical explanation of such check outlined in the newly discovered evidence offered on motion for new trial, the fact that Townley’s right to recover rests entirely upon the testimony of McNutt, who willingly testified that he had disposed of mortgaged property — in view of all these facts, I believe the court should have allowed Cooke to amend his pleadings, or, thereafter, should have granted his motion for new trial.
It should perhaps be noted that my opinion herein expressed is not based upon a conclusion as a matter of fact, that Townley and McNutt were guilty of fraud, but upon a conclusion, as a matter of law, that in the situation presented herein, defendant Cooke should have been permitted to amend and the issue of fraud should have gone to the jury for its decision thereon.-
I respectfully dissent.