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stances in the case, and not from any single as a limitation, have been made on the initem of evidence."

strument prior to the signing, for, upon subIt is argued that the fifth instruction as- scribing their names thereto, the sureties sumed that it had been proven that the de- adopted such minutes as their own, so that fendants left the bond with the sheriff with- the writing referred to, however made, comes out express restriction as to its delivery, within the terms of the charge. The word thereby excluding a consideration of any res- "important," as used by the court to qualify ervation that might have been implied from the word “fact,” was probably not well chothe face of the instrument, the acts, conduct, sen, but as the same adjective is employed in or conversation of the sureties, thus leading limiting words in other parts of the charge the jury to conclude that any evidence, other that are favorable to the defendants, we do than an express limitation, was ineffectual. not think they were prejudiced, or the jury It is unnecessary to state whether or not misled thereby. there was any testimony introduced at the It is unnecessary to consider whether or trial tending to warrant the court's declara- not the restrictions in respect to the delivery tion to the effect that the bond was left with of the bond were confined to the time when Huntington "without any express restrictions the instrument was executed, for, if the deas to its delivery,” for the language so used fendants desired that prior conversations is qualified by the further remark addressed should have been included in that part of the to the jury, "if you find it to be a fact.” The charge, they should have requested an injury were thereby told that if they should struction to that effect, but, not having done find that the instrument was left with the So, we think no prejudicial error was comsheriff without any express restrictions as to mitted in giving the fifth and sixth instrucits delivery, such fact should be considered tions. along with other evidence, such as the face Exceptions having been taken to the folof the instrument, the acts, conduct, or con- lowing parts of the charge, it is insisted that versation of the defendants, in determining the court erred in giving them, to wit: whether or not they intended to authorize (13) You are instructed that the sureties Huntington to deliver the bond in its then on the sheriff's official bond as tax collector condition.

are, equally with the sheriff, civilly liable for It is maintained that in referring to the the acts of his deputies, and that it is imbond and to the prefixing to the defendants' material in this case how the shortage arose names the word, signs, etc., noted thereon as or by whom it was created, or whether or possibly evidencing an intention to limit their not it arose from criminality or accident. liability, the court, in the sixth instruction, These matters are not to be considered by told the jury that if they found that the you in this case. figures placed there by the sureties, or at “(14) It is admitted by the defendants in their direction for any such purpose, etc.,

this cause, Brown, Fleetwood, Cartwright, thereby submitted to them the interpretation Isenhofer, and Fyfer, that the shortage in the of a writing which it should have construed ; account of A. H. Huntington, as sheriff, for that the figures mentioned may have been so taxes collected by him between September placed by some person other than the sure- 5, 1900, and July 7, 1902, is $10,770.64, but ties, or without their direction; and that un- the penal sum named in the bond is only due attention is called to and improper stress $10,000. I instruct you that the said sum of laid upon what is designated as an "im- $10,000 is the maximum amount of penalty portant” fact, thus confining the limitation that can be recovered by the plaintiff in this of restrictions to the time when the bond was action against said defendants. If, therefore, executed and excluding from consideration you find for the plaintiff, your verdict against all conversations the defendants may have defendants should be for the sum of $10,000, had in respect to their liability prior to their with interest thereon at the legal rate from signing the instrument. It is incumbent up- the date of the service of summons in this on a court to interpret written instruments case on the defendants, to wit, the 12th day (B. & C. Comp. & 136), but where the con

of March, 1903." struction of a document is referred to a jury, It is argued by defendants' counsel that no their finding thereon, if correct, renders the testimony was offered tending to show that error committed in such submission harm- the shortage of money adverted to was ocless. Johnson v. Shively, 9 Or. 333; Christen- casioned by any deputy sheriff, and for that son v. Nelson, 38 Or. 473, 63 Pac. 648. In reason the thirteenth instruction was errothe case at bar, we believe the finding on the neous. The bill of exceptions, certified to by question, involved in the instruction under the judge, does not purport to contain all the consideration, is correct, so that if it be as- testimony given at the trial, nor is any statesumed that the matter should not have been ment made therein that no testimony was submitted to the jury, their verdict will not offered tending to show what caused the loss be disturbed. It is possible that the word, of the taxes collected. The court reporter, signs, and figures prefixed to the signatures however, certifies to what purports to be a of the sureties may not have been written by transcript of all the testimony so introduced, them, or with their direction, but if such be which copy is referred to and identified in the the case, the entries must, to have any effect court's certificate; but as the transcript was evidently sent up in support of the defend- "(17) I instruct you that the signing of the ants' motions for a judgment of nonsuit, and instrument in evidence by the defendants, for an instruction to the jury to return a and the delivery thereof to Huntington, if verdict in their favor, it should be examined you find they did so, did not authorize Hunfor those purposes only. If a transcript of tington to deliver it to the county court of all the testimony, etc., could take the place Baker county; and unless you further find of a bill of exceptions, there would be no nec- from the evidence that the defendants, either essity for preparing a formal statement in by word or act, waived the limitation and writing of the objections and exceptions tak- restrictions (if any), expressed upon the face en by a party during the trial of a cause, of the instrument, such delivery, if any, by with so much of the testimony only as illus- IIuntington was unauthorized, and your vertrated the error alleged to have been com- dict must be for the defendants." mitted, for by interposing a motion for a It is argued that the insertion of the words judgment of nonsuit, or for an instruction to "if any” in the instruction requested subreturn a verdict for the defendant, the entire mitted to the jury the determination of the testimony must be examined upon every question whether or not the word, signs, and ground that could be suggested, the work of a figures prefixed to the names of the sureties, court of appeals would become almost inter- constituted a limitation upon the instrument, minable. The bill of exceptions not contain- when the duty of construing the language ing the statements mentioned, it must be pre- of the writing devolved upon the court. If sumed that the instruction complained of was it be assumed that the interpretation of the based on the testimony introduced, and hence prefixes to the names of the securities was no error was committed in giving it.

erroneously submitted to the jury, we beThe fourteenth instruction limited the re- lieve their finding thereon was correct, and covery to the penal sum specified in the bond, that the verdict should not be set aside. in case the jury found that plaintiff was en- Johnson v. Shively, 9 Or. 333; Christenson v. titled to recover, and in our opinion it cor- Nelson, 38 Or. 473, 63 Pac. 648. rectly stated the law applicable to the case. It follows from these considerations that

An exception having been taken to the fol- the judgment should be affirmed, and it is lowing part of the charge, it is claimed that so ordered. an error was committed in giving it, viz.:

"(16) I instruct you that, as a matter of HAILEY, J., having been of counsel, took law, a person who signs a joint and several no part herein. bond or obligation in which a specific penal sum is named, cannot lessen or limit his li

(48 Or. 604) ability thereon by writing another and small

WHITE V. SAVAGE et al.* er sum opposite his signature. If liable at (Supreme Court of Oregon. Dec. 18, 1906.) all on the instrument he can be held for the 1. Bills AND NOTES-ACCOMMODATION PARTY full amount, notwithstanding such figures.

-NOTICE-STATUTES, If he desires to limit or lessen his liability Comp. g 4431, the holder of a note for value is

Under the express provisions of B. & C. he must insert appropriate words in the body entitled to recover thereon against an accomof the instrument. But you may consider modation party, though the holder had aotice at such sums written in front of the names in

the time he took the note that the person sought

to be charged was only an accommodation pardetermining whether or not any restriction

ty. or limitations were placed upon the delivery [Ed. Note.-For cases in point, see Cent. Dig. of the bond; provided you further find that vol. 7, Bills and Notes, 88 964, 965.] defendants wrote the sums opposite their 2. PRINCIPAL AND SURETY-PRINCIPAL DEBT'names or authorized it to be done at the time OR-FAILURE TO PURSUE. of signing."

Failure of a creditor to proceed against If the limit of the liability of a surety had

the principal debtor on the request of the surety

does not release the surety from liability. been stated in the body of the bond, the sum [Ed. Note. For cases in point, see Cent. Dig. so specified would have been notice thereof vol. 40, Principal and Surety, § 329.] to the obligee, and probably constituted the 3. INJUNCTION – SUITS AT LAW – ADEQUATE measure of recovery against each. People v. REMEDY AT LAW. Stacy, 74 Cal. 373, 16 Pac. 192. Prefixing

Where a husband signed certain notes for

the accommodation of his wife, who thereafter numbers to the names of sureties on a joint

died, leaving an estate sufficient to pay them, and several bond, however, could not change the husband was not entitled to an injunction the legal effect of the instrument or limit the restraining the holder from pursuing him, inliability of the persons whose names were so

stead of filing the notes as a claim against the

wife's estate; the husband having an adequate subscribed to the sums indicated. Dangel v.

remedy at law by himself paying the notes to Levy, 1 Idaho, 722. No error was committed the holder and filing them against the wife's in giving this instruction.

estate. The defendants' counsel requested the court

[Ed. Note.-For cases in point, see Cent. Dig to give the following instruction, which was

vol. 27, Injunction, $8 28, 35.] modified by inserting the words indicated in Appeal from Circuit Court, Marion Counparentheses, and an exception having been ty; William Galloway, Judge. saved, it is maintained that an error was Suit by M. M. White against Lewis Savage committed, to wit:

*Rehearing denied January 12, 1907.

and others. From a judgment for plaintiff, | 1903, due six months after date, in favor defendants appeal. Reversed.

of Savage, and signed by the plaintiff and

his wife, and secured by a mortgage upon This is a suit to restrain defendant Savage

lands owned by her in Salem, Or., were from prosecuting two actions against the plaintiff upon promissory notes, signed by

received wholly by the plaintiff's wife and

expended for her care and nursing and plaintiff and his wife, since deceasell, and to compel the defendant Savage to present medical attendance upon her, and that the

plaintiff received no part of the considerahis notes to the executors of the will of

tion for said notes, and is only a surety upon plaintiff's wife for allowance, and for said

said notes, and the same is well known to executors to allow and pay them out of the estate. The amended complaint alleges, in

the defendant Savage; that shortly after substance, that the defendant Savage is

the death of plaintiff's wife the defen:lant the father of the defendant Zella Fletcher,

Savage offered to pay him $100 for a deed of and H. C. Fletcher is her husband; that

conveyance to him of plaintiff's estate ana

interest in the lands owned by his wife at Carolina E. Sloper White, wife of the plaintiff, died about August 18, 1901, in Marion

the time of her death, but the sum was whol

ly inadequate, and plaintiff declined to excounty, Or., and by her last will appointed

ecute such deed, and thereupon

and thereupon Savage the defendants H. C. and Zella Fletcher ex

commenced the action above referred to, and ecutor and executrix, respectively, of her will, which was thereafter admitted to pro

now the five defendants are engaged in an

cffort to despoil the plaintiff and obtain his bate and said executor and executrix duly

interest in his wife's lands by selling the appointed and qualified thereunder; that defendants George Sloper and Lottie Yourg

same upon execution upon the judgments

to be obtained in said actions; that said ac, are the only children and sole heirs at law

tions have been commenced solely for that of the plaintiff's wife; that plaintiff and said Carolina E. Sloper White were married

purpose, and the plaintiff, aside from his about the month of August, 1901, and were

estate in said lands, is wholly insolvent, husband and wife at the time of her death;

and that Savage knew when he brought his

actions that the debt could be satisfied and that the plaintiff is also named as a legatee and devisee in her will, but has renounced

the judgment obtained by him only out of his claim to the provisions of said will,

the life estate of plaintiff, and he also and claims a life estate in all her lands as

knew that the estate of plaintiff's wife was tenant by curtesy: that for several years

well able to pay the same, and that it wouli preceding her death his wife was an in

pay it upon presentation; that prior to the valid and required great care and atten

commencement of this suit plaintiff duly tion in nursing, and they were without any

presented his claim and demand to the ex. considerable means to pay for such expenses,

ecutor and executrix of said estate, setting and his wife applied to the defendant Savage

forth, among other things, the fact that he for a loan, and Savage from time to time

was only surety upon said notes, and dedid advance and lend her divers small sums

manding that said executor and executrix of money, which were wholly used in de

indemnify and save him harmless of an fraying expenses of nursing and caring for

from the amounts due upon said notes, but her, and that from time to time, as the

they have failed and neglected so to insums loaned amounted to the sum of $10!),

demnify and save him harmless, notwithplaintiff's wife executed notes to Savage as

standing the fact that the estate of plaintiff's an evidence of said indebtedneses on her

wife is able to pay the same after the paypart, and plaintifi signed the notes with

ment of all the prior claims against sail her, but only as surety; that on August 22,

estate; that plaintiff has no plain, speedy, 1901, after her death, Silvaye commenced

or adequate remedy at law, and that the an action in the circuit court of Marion

plaintiff has offered to defendant. Savag.. county against the plaintiff on two of said

payment in full upon all said notes anú mortnotes for $100 each, and thereafter, on

gage, and requested Savage to assign same September 6, 1904, commenced another ac

to plaintiff, but defendant has refused to tion in the same court against the plaintiff

do so for the reason that, if he did so, his upon the remaining two of said $100 notis,

prospects of acquiring title to said property and in each of said actions caused a writ

from the said several actions would be enof attachment to be issued, and by virtue

tirely swept away, and that being his only thereof attached the plaintiff's estate by

reason for bringing said actions at this time: curtesy in the lands of his deceasel wife, and that, unless defendant Savage is so reand that Savage has not presented said strained, he will recover judgment and sell claims to the executors for allowance, and plaintiff's estate and thereby cause him irwrongfully fails to present the same for reparable damage. Plaintiff then prays for the purpose of defrauding plaintiff out of a decree restraining defendant Savage from his life estate in the lands of his wife; that further prosecuting his actions, and declarall the moneys paid by Savage as a con- ing plaintiff to be a surety only upon said sideration for the execution of the four notes, notes, and that Savage be required to preand also a note for $300, dated January 21, I sent his notes to the executors of the estate

87 P.-66

of plaintiff's wife immediately, and that said executors be required to pay all of said notes out of the assets of said estate and indemnify and save the plaintiff harmless from all liability for all said notes and exonerate him as surety thereon. The foregoing is the substance of the complaint and substantially the language of the pleader. To this complaint a demurrer was filed on the grounds that the court had no jurisdiction of the subject-matter and that it did not state facts sufficient to constitute a cause of suit, which demurrer was overruled and answers filed, and, after trial, a decree was rendered in favor of the plaintiff, from which this appeal was taken.

John W. Reynolds and Carey F. Martin, for appellants. John A. Carson and S. T. Richardson, for respondent.

HAILEY, J. (after stating the facts). The facts alleged in the foregoing complaint are evidently intended to state a cause of suit to compel the creditor Savage to proceed against the estate of plaintiff's wife as principal upon the notes in controversy, for pay. ment therefor, before coming against the plaintiff as surety thereon. This is not a case where the plaintiff as surety claims to have been discharged in full or pro tanto by some act of the creditor detrimental to his ri as surety, as are the cases of Brown & Co. 1. Rathburn et al., 10 Or. 158, and Hoffman 1. Habighorst, 38 Or. 261, 63 Pac. 610. It is claimed that, the plaintiff being surety only upon the notes signed by himself and wife and defendant Savage being aware of that fact, he cannot compel plaintiff to pay without first exhausting his remedies against the principal or her representatives. Section 4131, B. & C. Comp., provides as follows: "An accommodation party is one who has signed the instrument as maker, drawer, acceptor, or endorser, without receiving value therefor, and with the purpose of lending his name to some other person. Such a person is liable on the instrument to the holder for ralue, notwithstanding such holder at the time of taking the instrument knew him to be only an accommodation party." Under this section it is clear that, so far as a holder for value is concerned, the question of notice does not affect the liability of the surety, and the complaint in this case shows that Savage is a holder for value; for it expressly alleges that he advanced and loaned to the plaintiff's wife the money for which the notes were given. It has been held by this court in Findley v. Hill, 8 Or. 248, 34 Am. Rep. 578, that the failure of the creditor to proceed against the principal debtor upon the request of the surety does not release the surety from liability; and in Rockwell v. Portland Savings Bank, 39 Or. 244, 64 Pac. 389, it is said: "In such case the surety may protect himself by paying the debt and being subrogated to the rights of the creditor." Bowen v. Clarke, 25 Or. 595, 37 Pac. 75,

Mr. Justice Bean said: “We understand the rule to be that where two or more persons execute an instrument at the same time, upon the same consideration, and for the same purpose, they are all, in legal effect, joint contractors or obligors, so far as their liability to the other contracting party is concerned, although one may be designated thereon as surety, and sign it as such.” And in Galloway v. Bartholomew, 44 Or. 77, 74 Pac. 167, it was held that the word "surety," written after the name of one of the makers of a note, would only show the relation of the makers to each other, and perhaps charge the holder with knowledge to that effect, but it would not affect their liability to him.

In Harman v. Harman, 62 Neb. 452, 87 N. W. 177, it is held that a surety of a decedent who pays a claim against the estate of his principal is subrogated to the rights of the creditor. The rule is well established in this state that a surety who pays the debt of his principal is subrogated to the rights of the creditor. Keel v. Levy, 19 Or. 450-454, 24 Pac. 253; Denny v. Seeley, 34 Or. 361 369, 370, 55 Pac. 976; Hoffman v! Habighorst, 38 Or. 261–271, 63 Pac. 610. In Scantlin v. Kemp, 34 Tex. 338, a note was given to the plaintiff Scantlin, signed by defendants Kemp and another as surety, and by Slane, the principal maker, who died, and after an administrator had been appointed the holders sued the sureties, who answered and proved upon the trial that Slane was the principal and received the entire consideration of the note, and they were sureties only, and that Slane left a solvent estate and they had notified the holder to take the proper steps to collect his claim from the estate, and a judgment was thereupon entered in favor of the sureties, but the case was appealed, and the Supreme Court in deciding it held that on the death of the principal the sureties became primarily liable for the note, and that it was unnecessary to present the note to the administrator for allowance. Willis & Bro. v. Chowning, 90 Tex. 621, 40 S. W. 395, 59 Am. St. Rep. 842; Vredenburgh v. Snyder, 6 Iowa, 39; Ray V. Brenner, 12 Kan. 105.

In the case at bar, however, it is not alleged or claimed that the plaintiff requested the defendant Savage to present his claim to the the executors of his wife's will for allowance, but that plaintiff presented his claim to the executors and requested them to protect him. We think, however, that he should have paid the notes to Savage and then presented his claims to the executor and executrix of his wife's estate, and that he could have fully protected himself by so doing. Having, therefore, a complete remedy at law whereby he could protect his rights, the court had no jurisdiction of this case, and the demurrer should have been sustained.

The decree is therefore reversed, and the case remanded for further proceedings not inconsistent with this opinion.

(48 Or. 612)



Proceedings in the county court exercising jurisdiction in probate should follow the nature of a suit in equity as distinguished from a suit at law, as provided by B. & C. Comp. $ 1100.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 13, Courts, $ 480.] 2. APPEAL-EQUITY PROCEEDINGS-REVIEW.

On an appeal from a decree in equity given in any court, the suit must be tried on the transcript and evidence accompanying it, as prescribed by B. & C. Comp. § 555.

[Ed. Note.-For cases in' point, see Cent. Dig. vol. 3, Appeal and Error, $ 3367.] 3. SAME-WANT OF EVIDENCE-QUESTIONS REVIEWABLE.

Where, on an appeal from a decree in equity, no evidence was brought up to the appellate court, the only question reviewable was whether or not the pleadings were sufficient to uphold the decree.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 3, Appeal and Error, $ 3367.] 4. EXECUTORS AND ADMINISTRATORS – AC


Where a decree appealed from, requiring an administrator to file a final account, was based on a petition which failed to state evidence sufficient to entitle petitioners to the relief prayed, such defect was not waived by the administrator answering over after the overruling of his demurrer to the petition, as provided by B. & Comp. $ 72. 5. SAME-FINAL ACCOUNT-PETITION.

A petition by a person interested in the ultimate accounting of an administrator or executor to compel the filing of a final account must aver that decedent's estate is ready for the final settlement.

[Ed. Note.For cases in point, see Cent. Dig. vol. 22, Executors and Administrators, &$ 2028, 2029.] 6. SAME.

Under B. & C. Comp. $ 1202, providing that, when an estate is fully administered, it shall be the duty of the executor or administrator to file his final account, a petition by certain distributees entitled to only one-fourth of the estate to compel a final accounting and distribution failing to allege that the estate was fully administered, but showing that there remained for collection several notes and claims, some of which were not due and others of which were of doubtful value, and failing to allege any contract between the distributees for distribution of such assets in kind, was fatally defective.

[Ed. Note.--For cases in point, see Cent. Dig. vol. 22, Executors and Administrators, SS 2028, 2029.]

MOORE, J. This proceeding was instituted in the county court of Union county March 28, 1906, by Cora L. Joel and Minnie Goodman against P. A. McDonald, as administrator of the estate of John Morrison, deceased, to compel the filing of a final account. The petitioners, for themselves and for their four brothers, naming them, state in their application, in effect, that Morrison died January 31, 1905, unmarried, without lineal descendant, and intestate, leaving in that county real and personal property; that McDonald was duly appointed as administrator of the decedent's estate by that court, and, having qualified as such, he gave the required notice to creditors, prepared and filed an inventory of the estate, showing the appraisment thereof to have been in cash $6,410.95, personal property, including notes and accounts, $12,388.70, and real estate, $12,275, makinp a total of $31,074.65; that on December 12, 1905, the administrator filed his first semiannual account, showing that he had received from the sale of personal property and from the collection of notes and accounts the sum of $3,487.51, and that he had paid out for all purposes $742.93, thus leaving in his hands in cash, including the money originally received, $9,153.53; that the estate owes no debts, and the money so in hand should be distributed or put at interest; that there are no existing contracts affecting any of the property of the estate to prevent a final settlement thereof; that the following are all the heirs at law of the deceased, naming them, and stating their respective degrees of relationship to Morrison, which, by reference to the petition for the appointment of the administrator, shows that the petitioners and their brothers are entitled as tenants in common to an undivided one-fourth of such estate by right of representation from their deceased mother : that all of such heirs are of age; and that McDonald had been requested by the petitioners to settle the estate, that the assets thereof might be distributed. A citation haring been issued and served on McDonald, he demurred to the petition on the ground. inter alia, that it did not state facts sufficient to constitute a cause of suit against him, but what action, if any, was ever had upon tbis demurrer, is not disclosed. An answer to the petition was filed, stating that the administrator had tried to collect the promissory notes that were payable to the estate, some of which were good and would be paid after harvest; that certain other notes were doubtful, and an attempt to collect them by action would incur costs and disbursements, but the makers thereof had promised to pay them; and that several other notes were not then due, setting out a list of such commercial paper. A demurrer to the answer, on the ground that the facts stated therein did not constitute a defense, having been overruled, the court, in the same order, recited the averments of the answer

Appeal from Circuit Court, Union County ; Robert Eakin, Judge.

Proceeding by Cora L. Joel and another to compel P. A. McDonald, as administrator of the estate of John Morrison, deceased, to file a final account. From a judgment in favor of petitioners, defendant appeals. Reversed.

Turner Oliver, for appellant. C. H. Finn, for respondents.

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