FRICKEL v. NORVAL & DIAL Inc.

FRICKEL v. NORVAL & DIAL Inc.
1926 OK 313
246 P. 381
118 Okla. 41
Case Number: 16533
Decided: 04/06/1926
Supreme Court of Oklahoma

FRICKEL
v.
NORVAL & DIAL, Inc.

Syllabus

¶0 1. Chattel Mortgages--Replevin for Breach--Subsequent Verbal Agreement No Defense. An action in replevin based upon the breach of condition to pay provided in a chattel mortgage given to secure a note for the purchase price, and which mortgage contains a stipulation to the effect that the terms of the contract cannot be altered except in writing, and further provides that "no verbal agreement concerning the same, either now or hereafter, shall be binding upon the parties," is not subject to the defense of a subsequent agreement.
2. Same--Proper Exclusion of Defensive Evidence. In an action, as above stated, it is not error for the court to exclude evidence tending to show a verbal agreement affecting the written contract between the parties.

Linn & Spradling, for plaintiff in error.
O'Conner & Holden, for defendants in error.

THREADGILL, C.

¶1 This was a replevin action brought by Jesse Norval, Jr., and Glenn Dial, copartners, doing business under the name of Norval & Dial, against George C. Frickel, to recover possession of a Dodge Brothers motor car under the terms of a mortgage given on said car, to secure a note for the purchase price. After the action was brought, and before trial, the firm was incorporated, and during the trial the corporation was substituted as plaintiff. The parties will be referred to herein as they appeared in the trial court. The note was for $ 1,435, dated May 19, 1921, and was to be paid in monthly installments of $ 119.62, with interest, the last payment maturing May 19, 1922. The mortgage was given to secure this note, and was in the usual form of chattel mortgages, and contained a provision as follows:

"No waiver of the terms and conditions to be kept by the mortgagor herein shall be deemed to have been given by mortgagee, assigns, or legal representatives, unless the same be in writing, signed by the mortgagee, assigns, or legal representatives, and written in this instrument, and no verbal agreement concerning the same, either now or hereafter, shall be binding upon the parties hereto; and the mortgagor further agrees that this instrument contains the entire agreement between the mortgagor and the mortgagee, assigns or legal representatives."

¶2 Plaintiffs plead the note and mortgage and the default in payment, and ask for possession of the car under the terms of the mortgage. Defendant filed answer, consisting of a general denial, and further alleging a verbal agreement between the parties, to the effect that plaintiffs were to furnish him certain insurance, and the premiums were to be retained by them as payments on the note, and the answer stated that they had failed to furnish said insurance, and, by breach of this verbal agreement, had prevented his making the payments. He also filed cross-petition for breach of the verbal agreement, and asked for damages in the sum of $ 544.23, being the amount of money he had advanced for the payments in cash. Plaintiffs moved to strike the defense of the verbal agreement and the cross-petition, as redundant and irrelevant matter, which was sustained by the court. Defendant excepted. The cause went to trial to a jury on the petition and general denial, and resulted in an instructed verdict for the plaintiffs, and defendant appealed urging two propositions for reversal:

1. The first is that the court erred in striking all of defendant's amended answer and cross-petition except the general denial. Defendant contends that he had a right to show an independent contract with plaintiffs as to the manner of making the payments provided in the note and which were secured by the mortgage. We are cited to the following cases in support of this contention: Mackin v. Darrow Music Co., 69 Okla. 1, 169 P. 497; Edwards v. City National Bank of McAlester, 83 Okla. 204, 201 P. 233; Hartley et al. v. Riley, 85 Okla. 101, 204 P. 920, and cases from other courts. We have examined these cases, and we do not think they are applicable here, for the reason they do not involve contracts specially providing that "no verbal agreement concerning the same, either now or hereafter, shall be binding upon the parties."