DAY v. MORGAN

DAY v. MORGAN
1926 OK 630
248 P. 611
118 Okla. 286
Case Number: 16664
Decided: 07/20/1926
Supreme Court of Oklahoma

DAY
v.
MORGAN.

Syllabus

¶0 1. Bills and Notes--Action on Note--Failure of Defense -- Demurrer to Defendant's Evidence. In a suit on a promissory note of date August 8, 1904, due on 30 days' notice, where the only evidence of the defendant was that the note was signed in 1907 and that no demand for payment was made until 1918, a demurrer to such evidence was properly sustained.
2. Same--Evidence of Alteration of Note Inadmissible Where not Pleaded. Evidence tending to show that words had been written in a promissory note after its execution is not admissible where a material alteration is not pleaded.

J. F. Thomas, for plaintiff in error.
Gensman & Dixon, for defendant in error.

RAY, C.

¶1 June 3, 1920, Katherine Morgan brought suit in the district court of Comanche county against Katherine B. Day to recover on a promissory note in words and figures following:

"$ 2,000.00 Lawton, Okla., Aug. 8, 1904. No.

"For value received, 60 days' notice, I promise to pay to the order of Katherine Morgan at The First National Bank of Lawton Two Thousand oo-100 Dollars, with interest thereon at the rate of 6 per cent. per annum from date until paid.

"(Signed) George Day,

" Katherine B. Day."

¶2 The defendant, by her amended answer, admitted the execution of the note, but denied that she was indebted to the plaintiff on the note in any sum whatever. She alleged that the note was signed by her in 1907, long after the note was executed by her husband, George Day, deceased, and that it was signed by her without consideration; that the note had been paid by George Day, deceased, principal maker of the note. She further pleaded that if the note had not been paid it was barred by the five-year statute of limitation. From a judgment in favor of the plaintiff the defendant has appealed. No contention is made here that the action was barred by the statute of limitation. The principal contention is that the court erred in sustaining the demurrer to defendant's evidence tending to show want of consideration and payment. Plaintiff's evidence was that in 1904 she lent to George Day, her brother, $ 2,000 without taking any note therefor, but that after her brother, George Day, was married to the defendant she demanded security, and received the note from him signed by himself and the defendant, Katherine Day; that she received the note in 1908 or 1909; that no demand for payment was ever made until after the death of her brother, George Day, in 1918, and that the note, or any part thereof, had not been paid. The defendant testified that she signed the note in 1907, and that no demand was made upon her for payment until after her husband's death in 1918; that she did not know whether payment had been made. A demurrer to defendant's evidence was sustained.

¶3 The defendant, in her brief, says:

We think that in view of the fact that the note was dated in 1904, and was not signed by the defendant until 1908, and was never seen by the plaintiff until about that date, the note was without consideration to the defendant.