Cooper v. Gibson , 69 Okla. 105 ( 1917 )

This action was commenced in the trial court by the Bank of Harwood to recover on a promissory note for $286.85, given by S.E. and Geo. H. Gibson, and to foreclose a real estate mortgage on real estate located in Harper county, executed by the makers of the note to secure the same. The First National Bank of Nevada, Mo., was made a defendant for the reason that it held a second mortgage on the land to secure a promissory note for $700 and interest. The Gibsons paid the note of the Bank of Harwood, and the plaintiff in error S.J. Cooper intervened in the case on the ground that he had purchased the note given the First National Bank of Nevada, Mo., and its mortgage had been assigned to him, and that that bank bad no further interest in the suit, and that he was the owner and holder of the indebtedness formerly held by that bank, and asked by way of cross-petition that he have judgment against the Gibsons for the amount of his note and interest and a foreclosure of his mortgage. The Gibsons answered admitting the execution of the note set out by Cooper, but charged that it had been given as a balance of the purchase money in a trade of property between Cooper and the Gibsons, wherein Cooper had traded the Gibsons certain land in Harper county for land of the Gibsons in Missouri, and a stock of merchandise, but that Cooper had defrauded them and they had sustained damages in more than the amount of the note, in this, that he had shown them one tract of land and deeded them another tract and one of less value, wherefore they prayed judgment against Cooper for the amount of damages so sustained. There was a reply in the nature of a general denial, and upon the issues thus made the cause was tried to the court and a jury. The jury found that the Gibsons had sustained damages and fixed the amount of their recovery at $1,169, and for the intervener for the amount of the note sued upon, being the sum of $1,169. The court rendered judgment upon the verdict against the intervener for cost, to review which this appeal is prosecuted. This being an action at law and the controlling issues being questions of fact, it was essentially a case for the determination of the jury.

It requires no citation of authority to establish the proposition advanced by the defendants in error here that if Cooper, in the negotiations for the exchange of the land, showed the Gibsons one tract and deeded them another tract of less value, that he perpetrated a fraud upon them, and that he was liable in an action for damages for all the injury that they thereby sustained. The verdict of the jury, in effect, found these issues in favor of the Gibsons, and there being evidence, to support such findings the verdict of the jury is conclusive on that point upon this appeal.

It is complained that the court erred in giving instruction No. 2 to the jury, wherein the element of fraud are explained and the law relative thereto is announced. An examination of that instruction will show that the trial court followed very closely the elements of fraud and the law controlling in cases of the character of the instant case, as declared by this court in Wingate et al. v. Render, 58 Okla. 656, 160 P. 614, and also in the case of Gannon, Goulding Thies v. Hausaman,42 Okla. 41, 140 P. 407, 52 L. R. A. (N. S.) 510. Therefore giving that instruction was not error.

Again, it is complained that the trial court erred in the admission of testimony. The governing rule on this question is announced in the second paragraph of the syllabus in Hankins v. Farmers' Merchants' Bank, 42 Okla. 330, 141 P. 272, as follows:

"In determining the existence of fraud any evidence, direct or circumstantial, which is competent by other rules of law, and which in the opinion of the court has a legitimate tendency to prove or disprove the allegations in the issue, is admissible. Great latitude is allowed in the introduction of evidence, the extent of the investigation being largely in the discretion of the trial court, and objections to circumstantial evidence * * * to show fraud may well be admissible when taken as a whole, although some of the circumstances, considered separately, would be incompetent. The whole transaction involving the alleged fraud may be given in evidence. 20 Cyc. 10."

No prejudicial errors of law appearing upon the record, the judgment appealed from should be affirmed.

By the Court: It is so ordered.

On Petition for Rehearing.