LEEKLEY v. CURTIS

LEEKLEY v. CURTIS
1926 OK 321
250 P. 508
120 Okla. 96
Case Number: 16462
Decided: 04/06/1926
Supreme Court of Oklahoma

LEEKLEY
v.
CURTIS.

Syllabus

¶0 Contracts--Necessity for Acceptance of Offer--Assignment of Mere Offer to Execute Securities a Nullity. An acknowledgment of an existing indebtedness, coupled with an offer to give new notes and securities therefor, upon condition that the original evidence of indebtedness and securities be canceled, amounts to nothing more than an offer, and until accepted or the terms thereof complied with by the creditor, is unenforceable, and an assignment of such instrument is a mere nullity and confers no rights upon the assignee.

Leahy & Brewster, for plaintiff in error.
Hall, Baker & Hall and Gibson & Hull, for defendant in error.

DICKSON, C.

¶1 The parties will be referred to in this opinion as plaintiff and defendant, as they were designated in the trial court, inverse to the order in which they appear in this court. On the 14th day of April, 1914, A. D. Curtis, the father of the plaintiff, acting for and in behalf of his sister, Julia C. Morgan, loaned to the defendant the sum of $ 5,000, taking defendant's note for said amount, bearing interest at 8 per cent. per annum, and due and payable one year after date, secured by a mortgage on certain real estate in Muskogee county. On the 1st day of July, 1915, the said A. D. Curtis, upon his own account, loaned to the defendant the further sum of $ 5,000, said indebtedness being evidenced by a promissory note executed by the defendant on that date, and due and payable one year after date, and bearing interest at 7 per cent. per annum. Afterward and between the 18th day of June, 1918, and the 16th day of November of that year, the said A. D. Curtis advanced to the defendant the further sum of $ 5,000, and this indebtedness being evidenced by certain sight drafts drawn on said A. D. Curtis by the defendant through the Commercial National Bank of Muskogee. This indebtedness bore interest of 8 per cent. per annum.

¶2 On the 7th day of March, 1921, the defendant addressed a communication to said Julia C. Morgan and A. D. Curtis, in which he acknowledged said indebtedness, and offered to furnish security for the payment thereof as follows: That if A. D. Curtis and Julia C. Morgan would waive all claims against him, the said defendant would execute and deliver to Julia C. Morgan a promissory note for the sum of $ 5,000, plus interest at 8 per cent. per annum from April 15, 1914, and payable two years after date thereof, which was to be April 1, 1921; and to execute and deliver a mortgage to said Julia C. Morgan on certain real estate in Muskogee county, securing the payment of said promissory note; and to execute and deliver to the said A. D. Curtis a promissory note in the sum of $ 10,000, and the accrued interest on said sum of $ 10,000 from the dates the same was received by the defendant up to the 1st day of April, 1921, said note to be dated April 1, 1921, and to be due and payable three years after date, and to draw interest at seven per cent. per annum, and to execute and deliver to the said A. D. Curtis a mortgage on certain real estate to secure said promissory note. This writing was signed by Harlow A. Leekley and delivered to the said A. D. Curtis. The said Julia C. Morgan retained the $ 5,000 note and mortgage securing the same. The said A. D. Curtis retained the promissory note for $ 5,000 and the interest bearing sight drafts, as evidence of the other $ 5,000 advanced to the defendant.

¶3 There was no agreement upon the part of said A. D. Curtis or Julia C. Morgan to accept the proposition contained in the defendant's written proposal of March 7, 1921, and no steps were taken to carry out said offer by any of the parties. On the 12th day of December, 1922, the said Julia C. Morgan executed the following assignment to the said A. D. Curtis:

"State of California, County of Los Angeles, City of Los Angeles, ss.

"I hereby acknowledge receipt of $ 5,000 to me in hand paid by Augustus D. Curtis of Chicago, Ill., which said sum represents payment made to me by said Augustus D. Curtis who had heretofore acted for me as my trustee in placing the said sum of $ 5,000 with one Harlow A. Leekley of Muskogee, Okla., for investment. In consideration of said $ 5,000, I hereby assign, transfer, and set over to the said Augustus D. Curtis of Chicago, Ill., all of my right, interest, and title in said matter. (Signed) Julia C. Morgan."

¶4 On the 3rd day of January, 1923, the said Augustus D. Curtis, executed the following assignment to the plaintiff: