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note, which allegedly was executed to guarantee payment of the
consultant’s fees.
The record supports an inference that none of the promissory
notes allegedly executed on behalf of In Touch in favor of the
consultants was ever delivered to the consultants. Petitioner
produced the original promissory notes in response to a subpoena
duces tecum issued by respondent before trial. It is reasonable
to conclude from the fact that petitioner had the original
promissory notes in his possession that the original promissory
notes allegedly executed for the benefit of the consultants were
never delivered to the consultants. Under Oklahoma State law,
delivery is an essential element to complete the legal transfer
of a negotiable instrument such as a promissory note. Harber v.
Lincoln, 51 P.2d 967, 969 (Okla. 1935).11 Because petitioner
failed to prove that In Touch delivered the promissory notes to
their intended recipients, petitioner has failed to prove that
11 Both execution and delivery are prerequisites to the
validity of a note. Luker v. Kells, 411 P.2d 511, 515 (Okla.
1966). Under Oklahoma law, the issuance of an instrument is
defined as “the first delivery of an instrument by the maker or
drawer, whether to a holder or nonholder, for the purpose of
giving rights on the instrument to any person.” Okla. Stat. Ann.
tit. 12A, sec. 3-105(a) (West 1998). Delivery is deemed to occur
upon a “voluntary transfer of possession.” Okla. Stat. Ann. tit.
12A, sec. 1-201(14) (West 2004).
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