
    MILLER et al. v. EXCHANGE NAT. BANK OF TULSA.
    No. 27247.
    June 8, 1937.
    Rehearing Denied Sept. 14, 1937,
    
      .ris & Maris, for plaintiffs in error.
    5. L. Hull, Olías. E. Busk, and Jas. E. , for defendant in error.
   [ELPS, J.

This was an action to -er upon a promissory note in the sum 50,000 given by the defendant Alma r England to the defendant Zack T. r, secured by a real estate mortgage, i note had in turn been assigned by T. Miller to the plaintiff as collat-security for the payment of a note of 30 given by the defendant Zack T. r to the plaintiff. No money judg-was sought against Zack T. Miller, was joined as a party defendant for mrpose of foreclosing any right which ,s pledgor of the Alma Miller England and mortgage, might have in the faged premises, and in order to de-ne the amount due on his note of 30. There was no controversy over .mount due on either note. Execution of notes, and the assignment to plaintiff lack T. Miller of the Alma Miller and note and mortgage, were admit-The trial court entered judgment in of the plaintiff, and the defendants 1. The defendant Alma Miller Eng-presents no argument upon appeal than by reference to the brief of [efendant Zack T. Miller, and the is-in this case are argued between and the plaintiff.

i defendant Zack T. Miller first urges the judgment of the trial court is st the clear weight of the evidence, ontends that the weight of the evi-was with his defense of failure of leration for the execution of the i0 note. The theory upon which he ded the action was that prior to tion of the note he was not personal-lebted to the plaintiff, but that the • Brothers 101 Ranch Trust was in-1 to plaintiff, and that the plaintiff threatening to institute receivership >ankruptcy proceedings against the trust, in which he owned a eonsid- ! share, and that he executed this assigning at the same time the $50,-note in suit as collateral, for the se of the plaintiff bank made by its president that it would in any event the filing of such action against the trust for a period of one year the date of his note; that the plaintiff bank had not kept the agreement, but did file such action for the appointment of a receiver, and said receiver was appointed, in a little more than six months following the date of the agreement and the execution of the note. He contends that this was an oral agreement made by the plaintiff with him at the time and on the date when he signed said $89,300 note. Therefore he contends that, since the promise of the bank was not kept, which promise was the consideration for which he signed the note, the $89,300 note should be canceled, and that likewise his assignment to the plaintiff of the $50,000 note in suit, which was merely colla feral to the $89,-300 note, should also ho canceled and rescinded.

Considering the case on its merits, and disregarding- questions involving the parol evidence rule, still the evidence does not bear out the contention of the defendant. The record clearly indicates the following to be the facts: On and prior to February 6, 1931, which was the date of the $89,300 note and of the collateral assignment to the plaintiff of the $50,000 note. in suit, the Miller Brothers 101 Ranch Trust was indebted to the plaintiff in the approximate sum of $121,000 on five promissory notes. The defendant Zack T. Miller owned about, one-third of the trust estate and was managing it. The notes of the trust estate were past duo and the plaintiff bank had been pressing Miller for payment, and had been threatening to institute court proceedings for that purpose. Miller on behalf of the trust estate was at that time negotiating with certain interests in New York for financial assistance. Miller fearing the effect upon those negotiations of any suit which might be instituted by the bank, arrangements were made between him and the hank whereunder he was to buy from the bank the $121,000 face value notes for the sum of $100,000, the bank agreeing to discount them that much for Miller’s personal note if he would give the bank sufficient collateral security for his said personal note. However, before the execution of the agreement, the trustee of the trust paid the bank $10,700 on the indebtedness of the trust to the bank, and accordingly the $100,000 purchase price which had originally been agreed upon was reduced to $89,300, the face amount of Miller’s note.

On February 6, 1931, the date of the execution of the $89,300 note and of the assignment . of the $50,000 Alma Miller England note by Zack Miller to the bank, Mr. Thompson, vice president of the plaintiff bank, by prearrangement went to the ranch and. there had an extended conference with defendant Miller and certain attorneys then representing him. Four or five persons were present during the negotiations. The bank, acting through Mr. Thompson, there assigned to Miller ihe notes of the trust estate which had been owned by the bank, and the consideration for the sale of said notes to Miller was Miller’s execution of the $89,300 note to the bank. Miller then assigned back to the bank the notes' of the trust estate which it had owned, as collateral for his $89,300 note, lie also assigned as collateral the $50,000 note and mortgage which was the subject of this action. As further collateral he assigned the bank certain life insurance policies.

The $89,300 note which he gave the bank was to mature in six months. During the conference at the ranch and preceding his signing of the note, he contended that six months would not be long enough for him to get straightened out financially, and that he would need a year for that purpose. His testimony was (and this is the meat of his defense) that Thompson then and there made an oral agreement with him to the effect that, although the bank could not give him a year to pay the note on the face thereof, the bank would fore-go the filing of any court action against the trust estate, in bankruptcy or for the appointment of a receiver, for at least one year from that date. He testified that Thompson made this agreement orally, and that the bank thereafter did, within less than a year, institute such receivership action. But the evidence further discloses that Miller insisted upon this agreement being put in writing, and he stated on cross-examination that it was put in writing in the form of a letter from Thompson to him, written at that time, but that he had lost said letter. Being shown by plaintiff’s attorney a carbon copy of a letter, he admitted that it was a true and correct copy of the letter of which he had been speaking. The letter reveals that the promise of the bank was, not that it would defer instituting any action, such as described by the defendant Miller, but that the bank agreed that if Miller would pay $40,000 on the note within six months afterward, the bank would surrender back to Miller the $50,000 note and mortgage which is the subject of the present action, and would also extend the $89,300 note for an additional period of six me It does not appear that said $40,000 paid to the bank by the defendant A The letter follows:

“February 6, 193
“Mr. Z. T. Miller,
“Ponca City, Oklahoma
“Dear Mr. Miller: Pursuant to our ment made coincident with the ( tion by you of a note to our Bank i: sum of $89,300.00, dated February 6, and maturing six months after dab hereby agree that .upon the payment of $40,000.00 plus interest at 6% froi date of said note, to surrender to y< your order the $50,000.00 first, real . mortgage described in the promissory
“It is understood, however, that tin $40,000.00 and interest must be paid t bank on or before six months from of said note.
“We further agree that on or 1 the maturity of said $89,300.00 note i event you pay us $40,000.00 and in of said note in money, we agree to e the unpaid balance for an additional of six months.
“Very truly yours,
“Exchange National Bank of “By Elmo Thompson Vicel Presi

We see no necessity of going into fi detail in narrating the evidence, cross-examination of the defendant revealed grave weaknesses in the ments made in his direct examin and, furthermore, pleadings of his fil a former lawsuit not connected wit instant action admitted that, there conditions attached to the promise c bank to extend the note. The test of defendant Miller himself having weakened by such admissions, and the mony of his supporting witnesses vague and hazy and tending to make ible the testimony of Thompson, than to support the defense attempts are of the opinion that the trial com correct in his implied finding of fact, effect that no such agreement ever e as that which was claimed by the defe The witnesses all stated that the v agreements which were made on the d the execution of the note were redu< writing as they were made. In view probability that the agreement cone the one year feature was reduced to w and that such instrument when pr< did not support defendant’s contentio correctness of the judgment is f evident.

defendant Zack Miller further con-that the trial court erred in refusing . jury trial. As stated above, the of the note and mortgage in suit, Miller England, did not deny execution note and mortgage, nor the amount Neither did the defendant Zack Miller the execution of his note, nor the t due on that or the other note, intention was that the consideration i execution of his $89,300 note had by reason of which the note should ;eled, and he asked for an affirmative ile relief, namely, the cancellation of >te. Thus the relief sought both. by aintiff and by the defendant Zack was equitable in nature. In Moore v. Stanton, 77 Okla. 41, 186 P. 466, we said:

;re, in an action on a promissory note foreclose a mortgage executed to payment of same, defendant admits m of the note and mortgage and by mplaint sets up a defense involving ilieation of equitable doctrines, and ffirmative relief that only a court of can give, such defendant is not en- ) a jury trial.”

e body of that opinion, we further

n defendants admitted the execution notes and mortgage, and by cross-set up a defense and presented is-.’olving the application of equitable s and prayed a rescission of the con-.d cancellation of the notes sued upon, ive relief that only a court of equity e, the issues of fact, to be tried did e concerning the execution or amount he notes. The execution of the notes )een admitted and no issues made as mount due, the money judgment was ¿dental to the issues presented by its’ cross-petition, following as a if course when the equitable issues etermined against defendants', and i equitable issues presented by de- (’ cross-petition the defendants were tied to a jury trial.”

lears that the defendant had less the right of trial by jury than in ase as Newbern v. Farris, 149 Okla. P. 192, where the following pro-ent was made:

t plaintiff’s cause of action depends able jurisdiction of the court and st pleads a counterclaim and set-off lg such issues as constitute an ae-law triable1 by jury, this does not he nature of the action, nor entitle t, as a matter of right, to a jury the issues arising therein.”

■ The decisions of this court are uniform in holding that actions involving only equitable issues are not triable to a jury as a matter of right, and that if a jury is impaneled to try the same, its verdict can only be advisory to the court, which must itself determine the facte and the legal principles applicable thereto. Crawford v. Hemingway, 116 Okla. 192, 244 P. 198.

The judgment is affirmed.

OSBORN, C. J., and WELCH, CORN, and HURST, JJ„ concur.  