Petropole v. Jacobs , 81 Okla. 82 ( 1921 )

McNEILL, J.

On February 17, 1919, F. W. Jacobs secured judgment in the district court of Creek county against Petropole for $918. On the 28th day of February, 1919, the parties attempted to settle said judgment by Petropole giving Jacobs $50 in cash and a check payable April 1, 1919, in the sum of $100, and Jacobs contends the check was received upon the representation of De-Maras, who was present at the settlement, that if said check was presented to him, De-Maras, the next morning he would cash the same and pay Jacobs the $100. Jacobs executed a receipt in full for said judgment, but the same was never filed.

On the 1st day of March, 1919, Jacobs filed in the district court a protest, alleging that the receipt signed by him in settlement of the judgment was obtained by fraud and deceit and' upon a worthless check. Jacobs thereafter had execution issued and levied. upon property belonging to Petropole. Pet-ropole filed a motion in the original ease to stay execution, alleging that the judgment had been fully satisfied, and attached the receipt to his motion, and asked that thfj court make an order staying execution in said cause. The ease came on for hearing-before the court upon the motion to stay the execution, and the court, after hearing testimony, denied the motion. The court made a finding that the witness DeMaras was the agent of Petropole in the transaction, and Dejaras had agreed to pay the check the next morning after the settlement, and failed and refused to do so, and that Petropole was bound by the acts of the agent, and the court permitted the $50 paid Jacobs to be credited upon the judgment. From the overruling of the motion to stay execution an appeal has been prosecuted to this court.

For reversal, the plaintiff in error contends that there is only a question of fact in issue in the case, and that is the judgment of the district court is without any evidence to sustain the same and is wholly contrary to the evidence. Without considering whether the order overruling the motion' for stay of execution is an appealable order, we will consider the question whether there was any evidence '**> -*«i>s.ort Lie-finding of the court tha* 1-eMaras was , e agent of Pet-ropole an<*^'!li receipt w»*« obtained by fraud anr ^üet*Ri The evidence disclosed that DeM3las ail(1 P^a-opoie had been together for 's(;y'eral days trying to effect a settlement Jacobs; there is evidence that the parties, or some of them, had been drinking during said time, and DeMaras represented that he was unfriendly to Pet-ropole, a,nd friendly to Jacobs, and advised Jacobs that Petropole was broke and if Jacobs did not make a settlement with Pet-ropole, that he would be unable to realize anything upon his judgment. A witness testified that he was present when Petropole ■ and DeMaras, a few days prior thereto, had offered Jacobs $300 to settle the case and Jacobs refused to do so. The evidence also disclosed that at the time of settlement and giving the $100 check, postdated April 1, 1919, DeMaras represented he would take the check up the next day, and this was the inducement held out to get Jacobs to accept the samo. The evidence supports the finding of the court that there was concerted effort on behalf of DeMaras and Petropole by the use of intoxicating liquor and • fraudulent representations to settle and compromise this judgment, and after obtaining the settlement of compromise, DeMaras refused to carry out tlie terms thereof.

We therefore conclude that the finding of the court is not clearly against the weight of the evidence.

The judgment is, therefore, affirmed.

HARRISON, O. J., and PITCHFORD. ELTING, and NICHOLSON J.T., concur