RUSSELL, J.
(after stating the facts as above). Briefly stated, the suit of plaintiff in error, plaintiff below, was based upon a promissory note executed and delivered by defendant in error Plalsell to Bradley, and by Bradley indorsed to Rowsey, and by the latter indorsed and delivered to the American National Bank, with the allegation that it was transferred before maturity, without notice, and for value.
With like brevity of statement, the contention of the defendant in error Plalsell is that he gave the note in question to Bradley, the consideration being that he received a considerable number of shares of stock in the International Land Company; that he was induced to execute and deliver said note (Exhibit A) upon the representations and misrepresentations and fraudulent statements of C. M. Bradley and W. E. Rowsey, acting together, that the stock for which he executed his note was known to them to be very valuable and worth at least three and four times its face value; and that he, being ignorant of the conditions and relying upon their statements, executed the note sued on; and that said statements and representations made by Rowsey and Bradley to him, which induced the execution of the note, were false and fraudulent and known by them to be false and fraudulent; and
that said shares of.stock were worthless and without value; and that such facts were known to them when they induced him to execute the note to Bradley and unknown to him, and for this cause there was a failure of consideration, etc.
The briefs of counsel have been prepared with great care and circumspection, and all have exhausted the force of argument and propositions of law in support of their respective contentions. Notwithstanding the elaborateness of their briefs, the various and numerous authorities cited by each, under the pleadings and proof the cause can be narrowed down to practically one proposition; and the conclusion reached as to this proposition disposes of the case as to Plalsell and determines the status of Bradley in the cause. The pivotal question presented in the original brief hinges upon the sufficiency of the evidence to support the finding.
As the laboring oar is upon the defendant Halsell to maintain his position in this case, it may be better to consider the evidence and its effect in support of his allegations of fraudulent representations and deceitful conduct that induced him to sign the note. His pleadings are strictly affirmative, covering with precision every necessary allegation that would constitute representations that would induce an involuntary act, and it follows that if this evidence and attendant circumstances in support thereof were reasonably sufficient in the belief of the jury to sustain his pleading he was entitled to a judgment. The honorable trial court, by its instructions to the jury, manifested a clear understanding of the issues that were presented, and, considered as a whole, and especially those features which bear upon the question of' fraud and deceit and misrepresentations and the result of such and the means of knowledge of either or all the parties to the transaction, they make it appear that the issues pro and con were submitted. It is our opinion that the law applicable was given the jury, and in such intelligible language as a jury of laymen would understand and be able to apply the evidence thereto.
The note in question in this action is clearly a nonnegotiable instrument under the laws in force at the time of its execution, for it has been repeatedly held that a note containing a provision for a reasonable attorney’s fees if collected by suit was not nego
liable — though this was changed by the act.taking effect June, 1911. That being the case, it necessarily follows that it is subject to all the equities existing between the original parties.
Clowers v. Snowden et al.,
21 Okla. 476, 96 Pac. 596;
Clevenger v. Lewis,
20 Okla. 843, 95 Pac. 230, 16 L. R. A. (N. S.) 410, 16 Ann. Cas. 56, and authorities cited therein.
In addition to this, the defendant Plalsell testified that the bank, being the plaintiff, had notice before it purchased the note of the fraud practiced upon him and his refusal to pay it. This was denied; yet the issue was left to the jury, and that fact was clearly left for them to determine, and if believed it carried, in addition to the provision in the note, actual notice to the plaintiff of the fraud and the disability of the note.
The issue upon which the defendant Halsell bases his cause of action is the charge that Bradley and Rowsey, by fraudulent acts, misstatements, and misrepresentations, induced him to execute the note in controversy for a worthless consideration, and that those facts were known to the plaintiff before it became the purchaser of the note.
We are told by Justice Story, in 1 Eq. Jur. sec. 186, that “fraud, actual or positive, includes cases of the intentional and successful employment of any cunning, deception, or artifice used to circumvent, cheat, or deceive another.” The intention to deceive, the cunning and deception used to circumvent, cheat, and deceive are fully alleged, and the proof in support thereof was the issue for the jury to determine. The question is presented whether there were such fraud and misrepresentation as to have been the determining cause of the execution of the note, and this depends upon the evidence; the allegations being complete. It seems to be the accepted theory of the law that when one person misrepresents or conceals a material fact which is peculiarly within his own knowledge, if also within the reach of the other party, to deceive or to induce him to refrain from inquiry, and if it is shown that' concealment or other deception was practiced with respect to the particular transaction, such transaction is void on the ground of fraud.
We do not think there is a controlling distinction between transactions amounting to fraud in equity and those amounting to fraud in law, for, as is well said by a distinguished writer, “fraud in all its shapes is as odious in law as in equity.” In the case of
Bottoms v. Neukirchner,
29 Okla. 104, 116 Pac. 434, Mr. Justice Kane, speaking for the court, it being a suit in equity to cancel a deed made by the plaintiff, says: “It seems that a lesser degree of proof is required to establish fraud in equity than in law”—citing
Moore v. Adams et al.,
26 Okla. 48, 108 Pac. 392, and other authorities. “In equity it suffices to show facts and circumstances from which it may be presumed.” Justice Williams, in
Moore v. Adams et al.,
26 Okla. 48, 108 Pac. 392, quoting from the case of
Myrick v. Jacks,
33 Ark. 425, says that: “Fraud must be shown and proven at law. In equity it suffices to show facts and circumstances from which it may be presumed.” It is held in
Moore v. Adams,
supra:
“In cases where fraud is alleged in the procuring of the execution of written instruments or deeds, the proof must sustain the allegations by a preponderance of the evidence so great as to overcome all opposing evidence and repel the opposing'presumptions. It should be of such weight and cogency as to satisfactorily establish the wrongful conduct charged; honesty and fair dealing as a rule being presumed.”
In the case of
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RUSSELL, J.
(after stating the facts as above). Briefly stated, the suit of plaintiff in error, plaintiff below, was based upon a promissory note executed and delivered by defendant in error Plalsell to Bradley, and by Bradley indorsed to Rowsey, and by the latter indorsed and delivered to the American National Bank, with the allegation that it was transferred before maturity, without notice, and for value.
With like brevity of statement, the contention of the defendant in error Plalsell is that he gave the note in question to Bradley, the consideration being that he received a considerable number of shares of stock in the International Land Company; that he was induced to execute and deliver said note (Exhibit A) upon the representations and misrepresentations and fraudulent statements of C. M. Bradley and W. E. Rowsey, acting together, that the stock for which he executed his note was known to them to be very valuable and worth at least three and four times its face value; and that he, being ignorant of the conditions and relying upon their statements, executed the note sued on; and that said statements and representations made by Rowsey and Bradley to him, which induced the execution of the note, were false and fraudulent and known by them to be false and fraudulent; and
that said shares of.stock were worthless and without value; and that such facts were known to them when they induced him to execute the note to Bradley and unknown to him, and for this cause there was a failure of consideration, etc.
The briefs of counsel have been prepared with great care and circumspection, and all have exhausted the force of argument and propositions of law in support of their respective contentions. Notwithstanding the elaborateness of their briefs, the various and numerous authorities cited by each, under the pleadings and proof the cause can be narrowed down to practically one proposition; and the conclusion reached as to this proposition disposes of the case as to Plalsell and determines the status of Bradley in the cause. The pivotal question presented in the original brief hinges upon the sufficiency of the evidence to support the finding.
As the laboring oar is upon the defendant Halsell to maintain his position in this case, it may be better to consider the evidence and its effect in support of his allegations of fraudulent representations and deceitful conduct that induced him to sign the note. His pleadings are strictly affirmative, covering with precision every necessary allegation that would constitute representations that would induce an involuntary act, and it follows that if this evidence and attendant circumstances in support thereof were reasonably sufficient in the belief of the jury to sustain his pleading he was entitled to a judgment. The honorable trial court, by its instructions to the jury, manifested a clear understanding of the issues that were presented, and, considered as a whole, and especially those features which bear upon the question of' fraud and deceit and misrepresentations and the result of such and the means of knowledge of either or all the parties to the transaction, they make it appear that the issues pro and con were submitted. It is our opinion that the law applicable was given the jury, and in such intelligible language as a jury of laymen would understand and be able to apply the evidence thereto.
The note in question in this action is clearly a nonnegotiable instrument under the laws in force at the time of its execution, for it has been repeatedly held that a note containing a provision for a reasonable attorney’s fees if collected by suit was not nego
liable — though this was changed by the act.taking effect June, 1911. That being the case, it necessarily follows that it is subject to all the equities existing between the original parties.
Clowers v. Snowden et al.,
21 Okla. 476, 96 Pac. 596;
Clevenger v. Lewis,
20 Okla. 843, 95 Pac. 230, 16 L. R. A. (N. S.) 410, 16 Ann. Cas. 56, and authorities cited therein.
In addition to this, the defendant Plalsell testified that the bank, being the plaintiff, had notice before it purchased the note of the fraud practiced upon him and his refusal to pay it. This was denied; yet the issue was left to the jury, and that fact was clearly left for them to determine, and if believed it carried, in addition to the provision in the note, actual notice to the plaintiff of the fraud and the disability of the note.
The issue upon which the defendant Halsell bases his cause of action is the charge that Bradley and Rowsey, by fraudulent acts, misstatements, and misrepresentations, induced him to execute the note in controversy for a worthless consideration, and that those facts were known to the plaintiff before it became the purchaser of the note.
We are told by Justice Story, in 1 Eq. Jur. sec. 186, that “fraud, actual or positive, includes cases of the intentional and successful employment of any cunning, deception, or artifice used to circumvent, cheat, or deceive another.” The intention to deceive, the cunning and deception used to circumvent, cheat, and deceive are fully alleged, and the proof in support thereof was the issue for the jury to determine. The question is presented whether there were such fraud and misrepresentation as to have been the determining cause of the execution of the note, and this depends upon the evidence; the allegations being complete. It seems to be the accepted theory of the law that when one person misrepresents or conceals a material fact which is peculiarly within his own knowledge, if also within the reach of the other party, to deceive or to induce him to refrain from inquiry, and if it is shown that' concealment or other deception was practiced with respect to the particular transaction, such transaction is void on the ground of fraud.
We do not think there is a controlling distinction between transactions amounting to fraud in equity and those amounting to fraud in law, for, as is well said by a distinguished writer, “fraud in all its shapes is as odious in law as in equity.” In the case of
Bottoms v. Neukirchner,
29 Okla. 104, 116 Pac. 434, Mr. Justice Kane, speaking for the court, it being a suit in equity to cancel a deed made by the plaintiff, says: “It seems that a lesser degree of proof is required to establish fraud in equity than in law”—citing
Moore v. Adams et al.,
26 Okla. 48, 108 Pac. 392, and other authorities. “In equity it suffices to show facts and circumstances from which it may be presumed.” Justice Williams, in
Moore v. Adams et al.,
26 Okla. 48, 108 Pac. 392, quoting from the case of
Myrick v. Jacks,
33 Ark. 425, says that: “Fraud must be shown and proven at law. In equity it suffices to show facts and circumstances from which it may be presumed.” It is held in
Moore v. Adams,
supra:
“In cases where fraud is alleged in the procuring of the execution of written instruments or deeds, the proof must sustain the allegations by a preponderance of the evidence so great as to overcome all opposing evidence and repel the opposing'presumptions. It should be of such weight and cogency as to satisfactorily establish the wrongful conduct charged; honesty and fair dealing as a rule being presumed.”
In the case of
Insurance Co. v. Rammelsberg,
58 Kan. 531, 50 Pac. 446, an opinion delivered by Mr. Chief Justice Doster, in discussing the question of proof necessary to establish the fraud, says: “It should be of such weight and cogency as to satisfactorily establish the wrongful conduct charged.” This seems to be an appropriate test, and, if the evidence presented in the opinion of those to whom the facts are presented is of sufficient weight and cogency to satisfactorily establish the wrongful conduct charged, that finding ought not to be disturbed on appeal.
As we have stated, this question has not been definitely determined in this jurisdiction, but without regard to such distinction, if any, it is not necessary to a determination of this case. The safe rule to determine the question whether or not fraud existed as the inducement to action — that is, where deception and
false representations known to be false are practiced to the injury of another: Is the evidence sufficient to satisfy the mind and conscience of the wrongful conduct charged? If this is a good test, and we deem it is, it is our opinion that in all cases where the evidence is sufficient to take the case to the jury on the question of fraud their finding upon such matter should be conclusive on this court. It is held in the case of
Howe et al. v. Martin et al.,
23 Okla. 561, 102 Pac. 128, 138 Am. St. Rep. 840, that:
“A party is guilty of fraud and deceit where, with intent to induce another to enter into a contract, he makes a positive assertion which is material in a manner not warranted by his information, or where he is not shown, to have reasonable grounds for believing it true, * * * even though believed by the party making it.”
Where the evidence is conflicting, this court will not review the evidence to ascertain where the weight of the evidence lies, and, if there is evidence reasonably tending to support the verdict, it will not be set aside. By Justice Hayes,
Harrill v. Parkinson,
27 Okla. 528, 112 Pac. 970:
“Where the jury is properly instructed upon an issue of fact joined by the pleadings, and there is evidence reasonably tending to support their finding on that issue, their verdict will not be disturbed by the Supreme Court.”
Justice Kane in
Burns v. Vaught,
27 Okla. 711, 113 Pac. 906, affirms this statement of the rule. And the same is held
in Hobbs v. Smith,
27 Okla. 831, 115 Pac. 347, 34 L. R. A. (N. S.) 697. In
Binion v. Lyle,
28 Okla. 431, 114 Pac. 618, by Chief Justice Turner, the same doctrine is asserted. The same rule is prescribed in
Fairfax v. Giraud,
35 Okla. 659, 131 Pac. 159, by Justice Dunn.
While it is true the plaintiff in error makes numerous assignments of error which refer to the giving of certain instructions and the refusal of certain instructions, yet nowhere in the extensive brief does it, by argument or authority, complain of the instructions or set forth any of them that we have been able to ascertain from a careful reading thereof.
It is necessary to a review of instructions given or refused that rule
25
adopted by this court (38 Okla. x, 137 Pac. xi) should be complied with, which is:
“Where a party complains of instructions given or refused, he shall set out
in totidem verbis
in his brief separately the portion to which he objects or may save exceptions.”
The assignments of error that the court committed error in giving instructions numbered 1 to 10, inclusive, and refusing instructions asked by plaintiff, without the instructions complained of being set out in the brief, are not in compliance with the rule and the opinions of this-court affirming it. However, we will add that we have examined the case-made and fail to find a record of the requested and refused instructions.
We deem it proper to say that, but for the repeated admonitions of this court that the issues raised in the court below, in order to be reviewed here, must be presented as the rules require, we might feel more or less regret at our inability to review what counsel deem worthy of attention.
The contention of plaintiff in error on the matter of rescission, which it has elaborately argued with citations of authority as to the duty imposed upon Halsell, the defendant in error, to bring himself within such rule, etc., has been carefully looked into. On this matter, the conclusion we have reached is that its argument and authorities, while good and bearing the earmarks of elementary principles, are totally inapplicable to the theory of the defendant Halsell as made by the pleadings and proof in this case. Counsel have assumed very ingeniously that the theory of Halsell rested upon the authorities and principles announced by plaintiff in error. It is sufficient to dispose of this matter by saying that Halsell’s defense was that the note given was without consideration and induced by fraudulent representations and overreaching. This was the real theory upon which the case was fought out and determined by the court and jury.
The defendant below C. M. Bradley is in this court by petition in error, but without a brief. The record shows that, after the trial resulting in the verdicts and judgments stated
{supra),
he filed a motion for judgment
non obstante veredicto,
based
upon the reasons shown in the statement of this case. While the matter presented by plaintiff in error Bradley is not in this court in the definite manner the rules require, yet we will consider and dispose of his contention. In this connection we will observe that one of the grounds set forth in plaintiff in error’s (American National Bank’s) reasons for a new trial is that there is an inconsistency in the verdict in favor of Halsell and against Bradley. We are loath to regard this as a grievance of which the bank should or could complain.
We do not think there is any merit in Bradley’s motion for judgment
non obstante veredicto,
for at least two reasons: (1) The jury evidently believed that Bradley and Rowsey were parties to the transaction which Plalsell pleaded and proved was fraudulent and without consideration, and such was the issue.
(2)
It is not denied that Bradley was indebted to Rowsey in a' similar amount to that of the note sued upon, for which indebtedness Rowsey had Bradley’s note with collateral as security. It was evidently the opinion of the jury that Bradley, by joining with Rowsey to inveigle Halsell into the giving of the note sued upon, received in return a cancellation of his own note to Rowsey and the return of his collateral stock. It is clear that if the finding of the jury is the true status of affairs — and we in this forum have no right to question that — then it is tantamount to a finding that Bradley cannot take advantage of his own wrong to Plalsell, even though in the conception of and perpetration of that wrong his payee, Rowsey, assisted. The premises found by the jury, if true, and the two verdicts rendered by them show both a moral and legal discrimination as to the liability between Bradley and Plalsell.
This is a voluminous record, and briefs and reply briefs are equally voluminous, and the points that counsel are entitled to a hearing on in this court, as well as those that do not permit review here, have not only been intelligently, but insistently, presented, and, notwithstanding the zeal and ability manifested, we are not able to discover the errors asserted, and in our attempt to do so we feel that we have treated the record with the consideration it deserves.
Under the pleadings and proof, the court being the judge of the sufficiency of the pleadings and the jury being the judges of the sufficiency of the facts, it is our opinion that no error appears of record, and the judgment of the superior court of Muskogee county is in all things affirmed.
All the Justices concur.