Commercial Securities Co. v. Jolly , 103 Okla. 8 ( 1924 )

Only three propositions are urged by plaintiff in its brief, as follows:

(1) Error of trial court in admitting evidence.

(2.) Error of court in refusing and giving instructions.

(3.) The verdict and judgment are contrary to the evidence and law.

The evidence first complained of under the first proposition is that of defendant relating to his effort by telegram to countermand the order before it was received and approved by Acme Phonograph Company. This was clearly competent and admissible under the issues framed by the pleading. Another contention is that the court erred in permitting the introduction in evidence of a certified copy of certain proceedings had in an action in the circuit court of Jackson county, Mo. The purpose of this testimony was to fix a date as being prior to the purchase of these notes by plaintiff. Plaintiff's witness, Smith, testified that he didn't remember whether these proceedings were before or after the purchase of these notes. The court limited this evidence to the purpose of fixing the time, which was proper, and for this purpose the evidence was admissible. It is next contended that the court erred in permitting defendant to introduce in evidence the proceedings for the incorporation and for the increase of stock of the Acme Phonograph Company which showed that plaintiff's witness, Smith, then stated under oath that he was a bona fide holder of stock in that company. He testified in this case that he never at any time owned such stock. This testimony was competent and admissible for purposes of impeachment. Defendant's effort was to show a connection between the plaintiff and the Acme Phonograph Company as a circumstance to disprove the good faith of plaintiff's purchase of the notes. Smith is an officer and director of plaintiff, but denied that he ever owned any stock in the Acme. This evidence was clearly competent for both purposes. The last contention under this proposition is that the court erred in admitting in evidence the contract or order signed by defendant at the time he signed the notes. The notes sued upon show upon their face that they are given for goods purchased. By his answer defendant alleged that the notes and order were executed subject to approval and acceptance by the Acme Company, and that he countermanded the order before it was received and approved. This would show that no contract ever existed, and that the notes were never legally binding. He also alleged that plaintiff had knowledge of this fact before it took the notes. The order and notes constituted one entire contract, and the order was competent and material upon the issue as to whether the notes were executed unconditionally or were conditional upon approval of the entire contract by the Acme Company. This evidence was not, as contended by plaintiff, introduced to prove fraud, but to prove that the notes were not delivered as binding obligations until approved by the Acme. This evidence was material upon the issue raised by the answer that the order was countermanded before its approval, so that the notes never became delivered obligations.

Under the second proposition plaintiff complains of the refusal of the court to give certain requested instructions. The first of these was for a directed verdict. There was no error in its refusal. The second instruction requested told the jury that the notes sued on were endorsed and for value. This was an issue of fact raised by the answer and properly determinable by the jury. This part of the instructions was an invasion of the province of the jury, and was properly refused. The third requested instruction told the jury that plaintiff was entitled to recover unless it had, at the time it took the notes, actual knowledge of fraud on the part of the Acme company in procuring said notes. The issue of fraud was not raised by the answer, so that this instruction was in no way applicable. Complaint is also made of the fourth and fifth paragraphs of the court's charge to the jury. It frequently occurs that isolated paragraphs of instructions may be verbally inaccurate and subject to criticism when standing alone. But instructions are not to be so considered. Instructions must be considered as a whole, and each paragraph be considered in its relation to every other paragraph. Great Western Mfg. Co. v. Davidson Mill Elevator Co., 26 Okla. 626, 110 P. 1096; First Nat. Bank of Tishomingo v. Ingle, 37 Okla. 276,132 P. 895; Weller v. Dusky, 51 Okla. 77, 151 P. 606; Badger Oil Co. v. Clay, 83 Okla. 25, 200 P. 433. It is not considered that the paragraphs complained of erroneously stated the legal propositions involved in them, but if they were in fact verbally inaccurate they could not have misled the jury when read in connection with the other paragraphs of the charge. This the jury was expressly directed to do.

Plaintiff's third proposition challenged the sufficiency of the evidence to support the verdict and judgment. It is too well settled in this state to require citations that when the verdict of a jury in a law action is based upon conflicting evidence, and the jury has received proper instructions as to the law, its findings as to the facts will not be disturbed in this court.

It is therefore concluded that the judgment of the trial court herein should be in all things affirmed.

By the Court: It is so ordered.