ODOM v. CEDAR RAPIDS SAV. BANK

ODOM v. CEDAR RAPIDS SAV. BANK
1926 OK 216
244 P. 758
114 Okla. 126
Case Number: 16359
Decided: 03/09/1926
Supreme Court of Oklahoma

ODOM
v.
CEDAR RAPIDS SAVINGS BANK.

Syllabus

¶0 Judgment--Notwithstanding Verdict--Pleadings to Authorize.
Under section 682, Comp. Stats. 1921, a judgment notwithstanding the verdict of the jury may be rendered by the court where upon statement in the pleadings one party is entitled by law to judgment in his favor, although a verdict has been found against such party; but it is error for the court to render judgment notwithstanding a verdict where upon the statements in the pleadings one party is not entitled to a judgment.

Error from County Court, Carter County; A. J. Hardy, Judge.

Action by Cedar Rapids Savings Bank against J. B. Odom. From a judgment for plaintiff, defendant appeals. Reversed and remanded, with directions.

R. A. Howard, for plaintiff in error.
Potterf, Gray & Poindexter, for defendant in error.

PHELPS, J.

¶1 J. B. Odom executed and delivered his five several promissory notes of $ 55 each, payable to the Seranado Manufacturing Company, which sold them to the Cedar Rapids Savings Bank. The notes were not paid when due, suit was brought in the county court of Carter county by the Cedar Rapids Savings Bank, praying judgment on the notes, and alleging that it purchased the notes from the Seranado Manufacturing Company in due course for value prior to maturity and that it was at the date of the commencement of the action the owner and holder thereof. The defendant filed his verified answer, admitting the execution of the notes, and alleged that the notes were given in the purchase of a talking machine which he bought from the Seranado Manufacturing Company for resale, and that the notes executed were a part and parcel and attached to a contract of purchase, which provided that:

"If I have not sold this machine by December 26, 1921, this contract is void and contract and notes to be returned to me at once and machine here subject to your orders."

¶2 The defendant further alleged that the machine was not sold by December 26, 1921, and that he held the same subject to the order of the Seranado Manufacturing Company, as per the terms of his contract, and that the notes under said contract were, therefore, void and should be returned to him; further alleging that plaintiff knew the conditions under which said notes were given; and specifically denied that the plaintiff was the owner and holder in due course, and denied that it acquired said notes before maturity, and prayed the cancellation of the notes. To the defendant's answer, plaintiff filed its reply, denying generally the allegations thereof, and again alleged that it purchased the notes in good faith for a valuable consideration prior to maturity, in due course without notice of any equity existing in favor of the defendant, and that it had no notice of the contract pleaded by defendant and renewed its prayer for judgment. Upon the issues thus joined the cause was tried to a jury, resulting in a verdict in favor of defendant. Plaintiff then moved for judgment against the defendant not withstanding the verdict, which motion was sustained and judgment rendered for plaintiff for the amount sued for, to reverse which this appeal is prosecuted.

¶3 This appeal presents but one question, to wit. Did the trial court err in rendering judgment for the plaintiff notwithstanding the verdict? and a proper conclusion on that question disposes of this appeal.

¶4 In McAlester v. Bank of McAlester, 95 Okla. 193, 218 P. 839, this court said:

"It is well settled in this jurisdiction that the court, in the absence of special findings, is without jurisdiction to enter judgment non obstante veredicto unless the same is warranted by the pleadings, and the court is not authorized to render such a judgment because there is an entire lack of evidence to justify the verdict in favor of prevailing party, or because the evidence shows that as a matter of law the court should have directed a verdict in favor of the losing party. Barnes v. Universal Fire Protection Co., 63 Okla. 292, 165 P. 176; Curtis & Gartside Co. v. Pigg, 39 Okla. 31, 134 P. 1125; Foster v. Leftwich, 52 Okla. 28, 152 P. 583; Hyatt v. Vinita Brass Works, 89 Okla. 171, 214 P. 706."