PATTY v. PRICE

PATTY v. PRICE
1956 OK 314
304 P.2d 289
Case Number: 37347
Decided: 11/27/1956
Supreme Court of Oklahoma

R.L. PATTY, PLAINTIFF IN ERROR, v. B.A. PRICE, DEFENDANT IN ERROR.

Syllabus by the Court.

¶0 In an action of legal cognizance tried to the court without a jury judgment will be given the same effect as a verdict of a jury and same will not be reversed if there is any evidence reasonably supporting the judgment.

Appeal from the District Court of Stephens County; Arthur J. Marmaduke, Judge.

Action by B.A. Price as plaintiff against R.L. Patty et al. From a judgment for plaintiff R.L. Patty alone appeals. Affirmed.

A.M. Beets, Comanche, for plaintiff in error.

George W. Moser, Comanche, for defendant in error.

CORN, Justice.

¶1 B.A. Price as plaintiff filed an action against Hubert Patty, Ray Stogsdill and R.L. Patty on a promissory note, a copy of which is as follows:

"$4250.00 Comanche, Oklahoma

Feby. 12 1951

"One Year after date for value received, I, we, or either of us promise to pay to the order of B.A. Price Four Thousand Two Hundred Fifty & no/100 ____ Dollars, with 6 percent interest thereon from Date, and on all past due principal and interest from its maturity, at the rate of 6 percent per annum until paid, interest payable annually, and if this note is not paid when due and is placed in the hands of an attorney for collection, or if collected through any trustee or by legal proceedings, then ten percent of the amount then due hereon, shall be added as liquidated collection fees. We, the makers, guarantors, assignors, sureties, and endorsers severally waive extension, presentment for payment, demand protest and notice of protest for non-payment of this note.

"Due Feby 12th 1952 /s/ Hubert Patty

/s/ Ray Stogsdill

"/s/ R.L. Patty

"By cash for interest to 2-18-52 ..................... $255.00
"6-25-53 By Cash to pay interest to Feb 18-53 ........ $255.00
"3-8-54 By Cash to pay interest to Feb 18-54 $255.00"

¶2 Hubert Patty confessed judgment and Ray Stogsdill has defaulted. R.L. Patty filed the following answer:

"Comes now R.L. Patty, one of the above named
defendants and for his separate answer to the
petition herein and denies each and every material
allegation in said petition contained, and further
answering states that he admits endorsing the note
described in the petition on the reverse side thereof
as a surety or accomodation endorser without
receiving any consideration therefor which at the
time the plaintiff well knew. That said note matured
by its terms on the 12th day of February, 1952; that
thereafter, and without the knowledge of this
defendant was renewed and extended to the 12th day of
February, 1953; and thereafter still without the
knowledge or consent of the defendant again extended
or renewed for another year to February 12th, 1954,
all without notice to, or knowledge of the defendant
with the result that defendant was released from his
obligation as a surety or accomodation endorser on
said note."

¶3 Issues being joined the case was tried to the court without a jury and judgment rendered for the plaintiff against all three defendants. Defendant R.L. Patty alone appeals and argues that the court erred in holding that he was not released by an unwarranted extension of the note. He cites Adams v. Ferguson, 44 Okl. 544, 147 P. 772. Therein it is stated:

"The elements necessary to unite in order to
constitute an extension which will discharge the
surety have been set out by Mr. Daniel, in his work
on Negotiable Instruments (volume 2 [5th Ed.] §
1315), as being:

"`First. A valid consideration. Second. An
agreement. Third. The extension must be for a
definite time. Fourth. It must be without the consent
of the surety. Fifth. It must be be without
reservation of remedy against the surety. And sixth.
The agreement must be with the principal in the
obligation.'"

¶4 The consideration for extension must include an agreement not to sue in order to release a surety. In this connection see Sawyer v. Bahnsen, 102 Okl. 41, 226 P. 344. Defendant concedes that the note provides a waiver of at least one extension but claims he is released by subsequent extensions and cites in support thereof Kremke v. Radamaker, 60 Okl. 138, 159 P. 475, wherein it is stated:

"Where by the stipulation in the note the time of
payment may be extended without notice the provisions
therein with reference to the extension are met and
satisfied by one extension, and if more than one
extension be given for a valid consideration and
without the consent of the surety, the surety is
thereby discharged from liability."

 
¶5 In Gregg v. Oklahoma State Bank of Ada, 72 Okl. 193, 179 P. 613, it is stated:

"Where a note contained the stipulation, `and all
the several names, sureties, and indorsers thereof
waive appraisement, notice of extension, non-payment,
and protest, and agree that any extension of time
made herein, or renewal thereof, shall not affect
their liability, whether they have notice of such
extension of renewal or not,' indicated that any one
of an indefinite number of extensions was intended."

¶6 In the opinion it is stated:

"Under the authorities on this question, we do not
think that we would be justified in extending the
rule further than has been done in the case of Kremke
v. Radamaker, supra. In that case, by an examination
of the record, we find the note was to mature two
years from the date thereof. The parties resided in
different states. The Commissioner, in delivering his
opinion, was careful to state that `by an examination
of the note in question it is apparent that the
language used was intended to apply to only one
extension of the time of payment and no more.' It
will be observed that the provision as to the
extension of payment of the note in the case at bar
is that the parties liable thereon agree that any
extension of time made thereon shall not affect their
liability, whether they have notice of such extension
or not."

¶7 On cross-examination plaintiff stated that there was an understanding that the note would be extended for the next year but there was no agreement not to sue. In his direct testimony he testified that R.L. Patty came to him in 1955 to see about the note and stated that if plaintiff would bring suit on the note and reduce the same to judgment he would pay it.

¶8 R.L. Patty denied this. He testified that he knew Hubert Patty had been paying the interest on the note from time to time; that he never made any inquiry about the note until he went to see plaintiff in 1955.

¶9 From the evidence introduced at the trial, the trial court was authorized to find that there was no extension binding on either the plaintiff or defendant R.L. Patty. R.L. Patty could have paid the note at any time and proceeded against the signers.

¶10 In a law action tried to the court without a jury, a judgment will be given the same effect as a verdict of a jury and the same will not be reversed if there is any evidence reasonably supporting the judgment. Continental Supply Co. v. Dickson Oil Co., 194 Okl. 660, 153 P.2d 1017.

 
¶11 There being competent evidence to sustain the judgment of the trial court it is affirmed.

¶12 WILLIAMS, V.C.J., and DAVISON, HALLEY, BLACKBIRD, JACKSON and CARLILE, JJ., concur.