Hollis v. Parks

Opinion by LOGSDON, C. It is well settled in this jurisdiction that where an issue of fact is raised by the pleadings, it is reversible error for the court to render judgment on the pleadings. Goodman v. Broughman, 39 Okla. 585. 136 Pac. 420; St. Louis & S. F. Ry. Co. v. Kerns. 41 Okla. 167, 136 Pac. 169: Peck v. First Nat. Bank of Claremore, 50 Okla. 252, 150 Pac. 1039: Cobble v. Farmers’ Nat. Bank, 53 Okla. 814, 158 *292 Pac. 304. The special defense interposed in this action and the reply thereto raised an issue of fact, upon which issue the defendant had the burden of proof. It was therefore reversible error for the trial court to sustain defendant’s motion for judgment on the pleadings, and to render judgment in his favor without testimony to sustain the special defense pleaded. Plaintiff further insists, however, that the answer stated no defense under the negotiable Instruments Law and that the court erred in overruling his motion for judgment on the pleadings. This contention cannot be admitted. Plaintiff is the original payee in the note, and the answer pleaded facts from which plaintiff must have known that defendant was merely a surety and not a joint maker. The note contained no waiver clause. Section 7790, Comp. Stat. 1921 (Rev. Laws 1910, sec. 4170), provides: “A person secondarily liable on the instrument is discharged: * * * Sixth. By any agreement binding on the holder to extend the time of payment or to postpone the holder’s right to enforce the instrument, unless the right of recourse against such party is expressly reserved.” This section has been construed and applied in Adams v. Ferguson, 44 Okla. 544, 147 Pac. 772, and Kremke v. Radamaker et al. 60 Okla. 138, 159 Pac. 475. Section 5155, Comp. Stat. 1921 (Rev. Laws 1910, sec. 1058), provides: “A surety may require his creditor to proceed against the principal, or to pursue any other remedy in his power which the surety cannot himself pursue, and which would lighten his burden; and if in such case the creditor neglects to do so, the surety is exonerated to the extent to which he is thereby prejudiced.” It has been held by this court that this section is not in conflict with the Negotiable Instruments I.aw, but is an enlargement of the grounds for discharge enumerated therein. National Bank of Poteau v. Lowry, 57 Okla. 304, 157 Pac. 103. For these reasons, the plaintiff was not entitled to judgment on the pleadings. This cause should be reversed and remanded, with directions to grant the plaintiff a new trial. I>y ihe Oouit: It is so ordered.