Lindsey v. Phillips

Opinion by STEPHENSON, O. John M. Phillips commenced his action against W. J. Walker, G. B. Lindsey, and J. D. Hie-bert, to recover on a promissory note. Tbe trial of tbe cause resulted in judgment for tbe plaintiff. G. B. Lindsey and J. D. Hie-bert have appealed tbe cause here, and submit several of tbe rulings of tbe trial court as error for reversal. W. J. Walker was principal and G. B. Lindsey and J. D. Hiebert were accommodation indorsers. Tbe note was executed and delivered to tbe plaintiff for cattle sold and delivered by tbe latter to Walker. Tbe plaintiff took a chattel mortgage on tbe cattle to secure the payment of tbe note. Among tbe several defenses set forth in tbe answer of Lindsey and Hiebert, was one to tbe effect tbat tbe plaintiff bad permitted Walker to sell cattle covered by tbe mortgage, to tbe value of about $1,500, and to retain tbe proceeds from tbe sale to bis use and benefit. Evidence was introduced in tbe trial of tbe cause by tbe defendants to support tbe answer in this respect. Tbe plaintiffs in error requested tbe court to instruct tbe jury to tbe effect tbat, if the plaintiff permitted Walker to sell and dispose of the cattle covered by tbe mortgage to the value of $1,500, and to retain tbe money for bis benefit, tbe defendants would be entitled to a credit therefor on any judgment that might be rendered against them. The court refused tbe instruction and failed to so charge tbe jury in tbe general instruction. Tbe defendants were entitled to have tbe issue of fact as made in tbeir answer in this respect submitted to the jury, either on tbeir requested instruction, or in tbe general instruction. Tbe failure of the court to instruct tbe jury as to tbe law applicable to this question of fact will operate to cause tbe reversal of tbe case. Schulte v. Garrett, 99 Okla. 52, 225 Pac. 904; American Investment Co. v. Baker. 104 Okla. 95, 230 Pac. 724; New et al. v. Bradshaw. 89 Okla. 205, 214 Pac. 557; Natl. Oil & Dev. Co. v. Keystone Oil Co., 91 Okla. 198, 216 Pac. 450. It would, serve no useful purpose to analyze tbe other propositions submitted, as tbe error pointed out is sufficient to cause the reversal of tbe cause. The cause is reversed and remanded for further proceedings in accordance with tbe views herein expressed. • By the Court: It is so ordered.