JOHNSON v. STATE BANK OF COMMERCE

JOHNSON v. STATE BANK OF COMMERCE
1926 OK 319
252 P. 59
123 Okla. 127
Case Number: 16310
Decided: 04/06/1926
Supreme Court of Oklahoma

JOHNSON et al.
v.
STATE BANK OF COMMERCE.

Syllabus

¶0 1. Trial--Motion to Direct Verdict--Consideration. The question presented to the trial court on a motion to direct a verdict is whether, admitting all the evidence which has been given in favor of the party against whom the action is contemplated, together with such inferences and conclusions as may be reasonably drawn from it, there is enough competent evidence to reasonably sustain a verdict in favor of the party against whose evidence the demurrer is directed.
2. Same--When Verdict Directed. The court should direct a verdict where a different verdict would be set aside as contrary to the evidence.
3. Same. Where there is no question of fact raised by the evidence of the defendant that could be properly submitted to a jury, it is not error to direct a verdict for plaintiff.

Loofbourrow & Loofbourrow, D. P. Parker, and Mauntel & Spellman, for plaintiffs in error.
O. C. Wybrant, for defendant in error.

RUTH, C.

¶1 The State Bank of Gate, Okla., as plaintiff, brought its action against P. A. Johnson on certain promissory note in the sum of $ 4,000. Mary M. Johnson was made a party defendant, as it was alleged P. A. Johnson, her husband, had transferred all his property to his wife for the purpose, as alleged, of hindering, delaying, and defrauding his creditors. Mary M. Johnson does not, however, appear to be interested in this appeal, and P. A. Johnson will be referred to herein as defendant. Defendant was president of the plaintiff bank, and the bank was capitalized at $ 20,000, and was carrying defendant's note for $ 4,000. The Bank Commissioner of the state of Oklahoma had on more than one occasion written the bank, demanding that this note and certain other notes be reduced by 50 per cent. Defendant, though president of the plaintiff bank, lived in Coldwater, Kan., but was advised of the attitude of the State Bank Commissioner, and tried to sell his bank stock, of which he held 80 shares at $ 130, par value being $ 100. It appears defendant was trying to get E. J. Haworth, cashier of plaintiff bank, to sell this stock to some one in the community, but on account of the condition of the bank, Haworth advised him he could not handle it at that time, as it would take three or four years for the bank to work out its large loans. However, after the bank received a letter of February 3, 1923, from the Bank Commissioner, stating that if it did not reduce the Johnson $ 4,000 note and the Dixon $ 4,187.40 note, both of these men being officers of the bank, an assessment would be made against the capital stock of the bank. E. J. Haworth wrote defendant the following letter from Wichita, Kan.:

"The Southwest State Bank

"Capital and surplus $ 270,000. M. C. Naftzger, V. President. S. B. Amidon, V. President.

"L. S. Naftzger, President, H. M. Pickler, Cashier, W. L. Feldner, Assistant Cashier.

"Wichita, Kan., February 10, 1922, Dec. Ex. 4 JLF.

"Mr. P. A. Johnson, Coldwater, Kansas. Dear Mr. Johnson:--In view of the fact of the recent examination report and of conditions in general I have decided to make you the following proposition relative to the bank at Gate: I will pay you $ 130 per share as follows: $ 10 per share to be taken in charge-off paper; The capital stock reduced to $ 10,000, the amount of the reduction taken out in paper and applied in payment as far as it will go. The balance to be paid in cash less two notes held by the Southwest Bank totalling, $ 10,500, your personal note of $ 5,500, and that of Sappington and Dixon $ 5,000. This proposition is made after consulting the Southwest State Bank, and getting their co-operation in furnishing money to put over the above deal. I feel that something must be done at once to comply with the Banking Department's requirement. It can't run along this way any longer and something must be done to relieve the situation here at Gate. I am writing Mr. Sappington relative to this matter, and I want you to reply to me at Gate as soon as possible. There are some other things I will take up with you in person when I see you. If this meets with your approval, you and Mr. Sappington arrange a date that you can meet at Gate, and I will have a representative of the banking board present, and close the entire transaction up without any further delay. Yours very truly, E. I. Haworth,"

¶2 It appears Johnson, this defendant, Sappington, Dixon, and Duval were interested in a contract in New Mexico, and Johnson was liable on this Sappington and Dixon note. It will be noted this letter was not written on the stationery of the plaintiff bank. Haworth did not sign the letter as cashier of the plaintiff bank, but used the personal pronoun "I," "I will pay you $ 130 per share," etc. It appears after some length of time Johnson, Sappington, and Duval met Haworth at the plaintiff bank. Johnson turned over his 80 shares of stock to Haworth; Sappington turned over 40 shares of his 80 to Haworth, subsequently obtained the $ 5,500 Johnson note from the Wichita Bank, and the $ 5,000 note of Sappington, Dixon, and Johnson, and delivered them to Johnson, and further deposited to the credit of "Johnson and Sappington" $ 3,100. Sappington could not deliver at this time his other 40 shares, as they had been pledged as security for a loan elsewhere.