Rosebaugh v. Jacobs

8 Citing cases

  1. Small v. Comer

    171 Okla. 418 (Okla. 1935)   Cited 13 times
    In Small v. Comer, 171 Okla. 418, 43 P.2d 716, we said that a party cannot rely at the same time on inconsistent defenses and that defenses are said to be inconsistent when proof of one necessarily disproves the other.

    ctory, and repugnant; that defendant paid $100 interest for an extension of the note sued on for one year, and that it was paid to plaintiff as usurious interest for six months, cannot be true; that to prove one contradicts and disproves the other; that under the circumstances it was proper to require defendant to elect upon which one of these propositions she would stand; that election was the only remedy in the premises; that the order of the court striking certain portions of the amended answer and cross petition was proper, and that no error was committed by the court in striking such portions from the amended and cross-petition, or in requiring the defendant to elect. In support of defendants contention in this case, she cites Garfield Oil Co. v. Champlin, 78 Okla. 91, 189 P. 514, and insists that said case sustains her position, but a careful reading of that case discloses that the court held that the defenses pleaded were not inconsistent or contradictory. Defendant also cites Rosebaugh v. Jacobs, 83 Okla. 211, 201 P. 245, as supporting her contention, but a careful examination of this case, we think, will disclose that no inconsistent defense was pleaded. She also cites Bilby v. Owen, 74 Okla. 158, 181 P. 724.

  2. Hawkins v. Howard

    30 P.2d 696 (Okla. 1934)   Cited 5 times

    "Under our practice, the pleading of inconsistent defense is permissible, and we believe the defendants had a right to plead as many different inconsistent defenses as they desired, and may rely upon any one which the proof supports. To this effect, see the following cases by our court: Rosebaugh v. Jacobs, 83 Okla. 211, 201 P. 245; Thompson v. Rhyner, 86 Okla. 146, 206 P. 609; Covington v. Fisher, 22 Okla. 207, 97 P. 615; Emerson-Brantingham Implement Co. v. Ware, 71 Okla. 19, 174 P. 1066; Metcalf v. Glaze, 70 Okla. 137, 173 P. 446."

  3. Thompson v. Kiester

    141 Okla. 69 (Okla. 1930)   Cited 11 times
    In Thompson, 283 P. at page 1020, we said that the true test of § 11's applicability is: "Did the work being done pertain to the business, trade, or occupation of the defendant, carried on by it for pecuniary gain? If so, the fact that it was being done through the medium of an independent contractor would not relieve the defendant from liability."

    Under our practice, the pleading of inconsistent defense is permissible, and we believe the defendants had a right to plead as many different inconsistent defenses as they desired and may rely upon any one which the proof supports. To this effect, see the following cases by our court: Rose-baugh v. Jacobs, 83 Okla. 211, 201 P. 245; Thompson v. Rhyner, 86 Okla. 146, 206 P. 609; Covington v. Fisher, 22 Okla. 207, 97 P. 615; Emerson-Brantingham Implement Co. v. Ware, 71 Okla. 19, 174 P. 1066; Metcalf v. Glaze, 70 Okla. 137, 173 P. 446. The other propositions presented by this appeal are as follows: (1) Whether the doctrine of res ipsa loquitur is applicable to a boiler explosion; (2) whether or not plaintiff made an election of remedies; and (3) the sufficiency of the evidence.

  4. Taylor v. Campbell

    139 Okla. 110 (Okla. 1929)   Cited 19 times

    A deed absolute on its face, given as security for a debt and so received, will be held to be a mortgage. Weiseham v. Hocker, 7 Okla. 250, 54 P. 464; Balduff v. Griswald, 9 Okla. 438, 60 P. 223; Worley v. Carter, 30 Okla. 642, 121 P. 669; Voris v. Bobbins, 52 Okla. 671, 153 P. 120; Hall v. Russell, 72 Okla. 47, 178 P. 679; McKean v. McLeod, 81 Okla. 77, 196 P. 935; Rosebaugh v. Jacobs, 83 Okla. 211, 201 P. 245; Renas v. Green, 98 Okla. 169, 212 P. 755; Kinch v. Pierson, 97 Okla. 109, 223 P. 144; Orton v. C. S. Bank, 99 Okla. 80, 225 P. 899; Section 5253, C. O. S. 1921; Biendorf v. Thorp, 90 Okla. 191, 203 P. 475; Penney v. Walters, 121 Okla. 280, 249 P. 736. The Biendorf Case states in the syllabus the rule that:

  5. Jones v. American Inv. Co.

    274 P. 673 (Okla. 1929)   Cited 1 times

    Even so, and this we deem it unnecessary to determine, such defenses are not objectionable unless prohibited by statute. Rosebaugh v. Jacobs, 83 Okla. 211, 201 P. 245. It is to be observed that much of plaintiff's argument in support of the court's denial of the motion, in effect, anticipates the character of the evidence available in a trial of the issues raised by the tendered answer. With that phase we cannot deal, since, in the state of the case, we are limited to the ascertainment of whether or not the answer met the requirements of the controlling statute.

  6. First Nat. Bank of Ada v. Elam

    126 Okla. 93 (Okla. 1927)   Cited 18 times
    In First National Bank of Ada v. Elam, 126 Okla. 93, 258 P. 892, 900 (1927), it is made clear that the "good faith" defense applies to a mortgagee's refusal to accept a tendered payment in full.

    "The real intention of the parties, either as shown upon the face of the writing or as disclosed by extrinsic evidence, must govern in equity." Rosebaugh et al. v. Jacobs, 83 Okla. 211, 201 P. 245; Haynes et al. v. Gaines et al., 76 Okla. 268, 185 P. 74. "A wide latitude is allowed in cases of fraud and circumstances altogether inconclusive, if separately considered, may, by their number and joint operation, especially when corroborated by moral coincidences, be sufficient to constitute conclusive proof."

  7. Independent School Dist. No. 66 v. Kemp

    243 P. 514 (Okla. 1925)   Cited 1 times

    "When the answer to a petition sets forth in each of two separate paragraphs a different state of facts, each of which state of facts constitutes a defense, counterclaim, or set-off, the defendant cannot be required to elect upon which one of such counts he will proceed to trial." In Rosebaugh v. Jacobs, 83 Okla. 211, 201 P. 245, it is said: "This court in a long line of decisions has held that inconsistent defenses are permissible under the practice in Oklahoma, unless prohibited by statute."

  8. Clinton v. Utah Construction Co.

    40 Idaho 659 (Idaho 1925)   Cited 35 times

    ( Harmon v. Grants Pass Banking Trust Co., 60 Or. 69, 118 Pac. 188.) To the same effect see: Chapman v. Hicks, supra; Robitaille v. Boulet, 53 Mont. 66, 161 P. 163; Rosebaugh v. Jacobs, 83 Okl. 211, 201 P. 245; Hall v. Russell, 72 Okl. 47, 178 Pac. 679; Voris v. Robbins, supra; Elliott v. Bozorth, 52 Or. 391, 97 P. 632; Hall v. O'Connell, 52 Or. 164, 95 P. 717, 96 Pac. 1070; John R. O'Reilly, Inc., v. Tillman, 111 Wn. 594, 191 P. 866; Beverly v. Davis, 79 Wn. 537, 140 P. 696; Hoover v. Bouffleur, supra; McFadden v. French, 29 Wyo. 401, 213 P. 760. This intention, as above noted, is to be ascertained from the written instruments themselves and the intention of the parties as gathered from their previous negotiations, their agreements and conversations and the course of dealings between them prior to and leading up to the execution of the instruments and the peculiar circumstances of each case. ( Winters v. Swift, supra.)