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opinion, competent evidence, and properly admitted. If the defendant, at plaintiff's request, or by his authority, paid notes due the bank from him, and thus obtained possession of such instruments, they are competent evidence in an action between the plaintiff and the defendant in which such payment is in dispute. The payment of a negotiable instru

suing bank, and sent it to plaintiff at his request, and that it was not charged on the books of the bank to plaintiff. The draft was, therefore, we think, competent in connection with the testimony of the defendant, as tending to show a payment by him to plaintiff, and is corroborative of his oral testimony. The books of the bank, showing the transactions in connection with the draftment may be made by any person liable therewould, undoubtedly, have been more satis factory evidence than the oral testimony; but that matter affected the weight, and not the competency, of the evidence. If, in fact, defendant purchased the draft with his own money, and forwarded it to the plaintiff, and it was cashed by him and the proceeds appropriated to his own use, it would be a payment by defendant to plaintiff of the amount of such draft. And this is what the evidence tended to show.

The second assignment of error is based on the admission as evidence of payment by defendant to plaintiff of a draft drawn by the plaintiff on the Farmers' & Traders' National Bank payable to the First National Bank of Baker City. The defendant testified that when this draft was presented for payment to the payee bank: "I took care of it and paid it out of my own funds." But the draft, as offered and admitted in evidence, is not corroborative of this testimony. It shows a transaction between the plaintiff and the drawce bank, and there is stamped on the face of it by the bank the word "Paid." It was evidence of a payment by the bank to plaintiff, but not of the payment of money by defendant to plaintiff or on his account without showing that the draft was not paid from the funds of the plaintiff or that defendant deposited with the bank to plaintiff's credit money with which to take care of it. It was drawn by the plaintiff on a bank in which he had an open account, and paid by such bank, presumably out of the funds of the drawer or charged to his account, and it is not perceived how the defendant, who is the cashier of the bank, can claim credit as against the plaintiff for such payment by simply producing the draft from the bank files and testifying that when presented it was paid by him, without producing the bank records. In the nature of things the draft must have passed through the bank, and its records are the proper evidence of its payment and by whom. The same rule will apply to the draft for $100 drawn by plaintiff on the Farmers' & Traders' National Bank in favor of Will Wright.

The third, fourth, fifth, and sixth assignments of error relate to the admission in evidence of four promissory notes given by the plaintiff to the Farmers' & Traders' National Bank. These notes were produced on the trial by the defendant marked "Paid" by the bank, and he testified that they were paid by him at the request of the plaintiff or by his authority. They were, therefore, in our

on or by his agent, and the party making the payment has a right to demand the possesTiedeman, Com. sion of the instrument.

Paper, §§ 372, 373. If, as defendant testifies, he made the payment as agent of the plaintiff, the possession of the notes with the cancellation of the payee thereon was presumptive evidence that they had been paid and were admissible as such. State v. Brooks, 85 Iowa, 366. 52 N. W. 240.

Assignment No. 8 is based on the admission in evidence of three promissory notes made by the plaintiff to the Farmers' & Traders' National Bank for $100, $150, and $200, respectively, and having attached thereto a check of defendant, payable to plaintiff or bearer for $601.31. The defendant testified in relation to these notes and check that on or about October 1, 1903, he had a settlement with the plaintiff, and, at plaintiff's request. took up and paid the three notes by giving the check attached, and that the difference between the amount due on them and the check was paid to plaintiff in cash, and the check charged to his account on the bank books. The notes were properly admitted for the reasons given in the preceding assignment of error. The check was a part of the same transaction, and attached to the notes, and was likewise competent for whatever the jury might consider it worth. To prove certain alleged payments, the defendant testified that on the dates and at the times mentioned, he deposited with the Farmers' & Traders' National Bank certain sums to the credit of the plaintiff, and as evi dence of such deposits produced and there were admitted in evidence over plaintiff's objection and exception, sundry memoranda or deposit tags, such as are generally made out by or for a depositor in a bank, and handed in with his deposit book, stating the amount he is depositing. he is depositing. These memoranda or tags were in the handwriting of the defendant, and it does not appear that any of them were ever delivered to or received by the bank, or that the bank in any way became liable to plaintiff on account of such alleged deposits. It is therefore manifest that standing alone they were not competent evidence to show that defendant had paid money to the bank on plaintiff's account. They were not made out by the bank or any of its officers for it, and were not acknowledgments or admissions by the bank of the receipt of the money. The fact that the defendant testified that he took the slips from the bank files did not make them competent evidence of the receipt of money by the bank. He

was the cashier, had the custody of the bank's papers and files, and it would have been an easy matter for him if he had been so disposed to have made out deposit slips or tags at pleasure, and placed them among the bank files without the bank in any way being bound thereby. Before such slips are competent evidence of the payment of money by the defendant to the bank on plaintiff's account there should be some showing that the plaintiff had received credit therefor on the bank books or that the bank had in some way acknowledged liability for the amount thereof and became bound to pay the same. The remaining assignments of error relate to the instructions of the court. It is unnecessary, in view of a new trial, to notice any of them except the one that "as to items claimed as a defense here by Mr. Scriber, if a defense here, they cannot be legally claimed as a defense by the bank in its action." This instruction, while it may be sound as an abstract proposition of law, was, we think, improper and misleading to the jury. It appeared that during the transactions in dispute between the plaintiff and the defendant, the plaintiff had an account with the bank, and that there was a controversy between him and the bank as to the state of such account. The instructions, as given, would probably lead the jury to believe that it was not very important whether the defendant satisfactorily made out his defense of payment, because plaintiff would receive credit on his account with the bank with any amount they might allow the defendant and, therefore, could not be injured. The bank, however, was not a party to this action, and would not be bound in any way by the result. Any credit the jury might allow the defendant for money alleged to have been paid to him by the bank for plaintiff's benefit would not preclude the bank from denying such .payment, unless it had in fact been made or the bank had become liable to plaintiff therefor. The fact that the plaintiff was at the same time dealing with the defendant in his individual capacity, and as cashier of the bank, renders it difficult to keep the several transactions separate; but it is important for the rights of all parties that it should be done as nearly as possible.

It follows from these views that the judgment of the court below must be reversed, and the cause remanded for a new trial.

(48 Or. 571) WILLIAMS et al. v. FIRST NAT. BANK OF ONTARIO et al.

(Supreme Court of Oregon. Dec. 11, 1906.) 1. CHATTEL MORTGAGES-LIEN AND PRIORITY -ACTUAL NOTICE-WHAT CONSTITUTES.

One of the payees of a note, when he left it at a bank for collection, informed the bank that the payees had a mortgage on the maker's sheep, referring thereby to sheep on which the bank afterwards took a mortgage. Held a sufficient actual notice of a mortgage covering such sheep,

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B. & C. Comp. § 5630, provides that a chattel mortgage shall be acknowledged in the same manner as a conveyance of real property. Section 5631 provides: "Any such mortgage ** * may be recorded," etc. Held, that the recording of an unacknowledged mortgage imports no notice of its existence.

[Ed. Note. For cases in point, see Cent. Dig. vol. 1, Acknowledgment, §§ 43, 55.] 3. SAME-EFFECT OF ACTUAL NOTICE.

B. & C. Comp. § 5633, provides that every mortgage, not accompanied with delivery or recorded as provided in section 5631, shall be void as against subsequent mortgagees "in good faith and for a valuable consideration." Section 5631 authorizes the recording of chattel mortgages acknowledged as required by section 5630. IIeld, that a chattel mortgage was valid as against a subsequent mortgagee having actual notice thereof, though, owing to lack of acknowledgment as required by section 5631, the record of the prior mortgage under section 5631 was of no effect.

[Ed. Note. For cases in point, see Cent. Dig. vol. 9, Chattel Mortgages, §§ 242, 264.] 4. SAME-REMOVAL TO ANOTHER COUNTY.

B. & C. Comp. § 5632, provides that, when the property is removed to another county, the lien will not be sustained as to subsequent mortgagees in good faith and for a valuable consideration unless recorded there within 30 days. Held, that the removal of the property to another county after the execution of both mortgages and the subsequent recording there of both mortgages did not change the rights of the two mortgagees.

Appeal from Circuit Court, Grant County; Geo. E. Davis, Judge.

Action by S. S. Williams and another against the First National Bank of Ontario and others. From a judgment in favor of plaintiffs, defendants appeal. Affirmed.

This is an action to recover possession of 2,316 sheep mortgaged to plaintiffs by L. S. Wickersham, the owner thereof, who afterwards mortgaged them to the defendant bank, which claims a right to their possession under its mortgage. The case was tried by the court without the intervention of a jury, upon an agreed statement of facts, from which it appears that on August 2, 1902, Wickersham gave plaintiffs a mortgage upon the sheep in controversy to secure the payment of $4,125, part of the purchase price thereof, evidenced by two notes, one for $500 due July 15, 1903, and the other for $3,625 due September 15, 1904, with interest at 10 per cent. per annum from September 15, 1902, payable annually; which mortgage was properly executed and witnessed but not acknowledged, and was, on October 1, 1902, recorded in Malheur county, and on July 8, 1904, in Grant county; that on July 8, 1903, Wickersham gave the defendant First National Bank of Ontario a mortgage on the same sheep to secure the payment of a promissory note for $500 that day executed by him to the

bank, and due in six months after date, which mortgage was properly executed, witnessed, and acknowledged, and on the next day recorded in Malheur county, and afterwards, on the 29th day of June, 1904, recorded in Grant county, to which latter county the sheep covered by said mortgages had been removed on the 15th day of June, 1904. In July, 1904, the defendant bank obtained possession of all the sheep covered by its mortgage by an action of claim and delivery commenced by it against the mortgagor Wickersham, and thereafter, on July 13, 1904, the plaintiffs commenced this action of claim and delivery for the sheep against the bank and other defendants herein, but, according to the stipulated facts, the other defendants have no interest in this action. It is further agreed that on the day of June, 1903, prior to the execution and delivery by Wickersham of the mortgage to the defendant bank, one of the plaintiffs. I. S. Goodwin went to the bank and left with E. II. Test, its cashier, for collection, the $500 note secured by plaintiffs' mortgage, "and then and there informed the said cashier that he, the said Goodwin, and S. S. Williams had a chattel mortgage upon the sheep owned by the said Wickersham and which are described in the mortgages of both plaintiffs and defendant bank." It is also stipulated that default had been made in the conditions of both mortgages; and that Test was cashier of the bank when its mortgage was taken, and witnessed the same. There are other facts stipulated, but, not deeming them necessary to the determination of the questions involved in this suit, we refrain from reciting them. The court entered judgment in favor of the plaintiffs for the possession of the mortgaged property and costs, it appearing from the record that possession of the sheep had been obtained by the plaintiffs theretofore by affidavit and an undertaking as provided by the Code in actions for claim and delivery. From this judgment, the defendant bank appealed.

those covered by the two mortgages. Defend ant claims that this notice is not sufficient, in that "it does not appear to what this notice extended, nor does it appear that the other note described in the mortgage was mentioned." How actual notice of the mortgage could have been given more directly than by these admitted facts, we fail to see, unless by producing and exhibiting the mortgage itself or reciting its contents. The notice clearly extended to the sheep upon which defendant afterwards took its mortgage, and had reference to the mortgage given thereon to plaintiffs, in which both notes secured thereby were mentioned. The cashier was told by one of the mortgagees of its existence, and could have learned from the same source its full terms, and such notice was sufficient. Bohlman v. Coffin and Carter, 4 Or. 318; Musgrove v. Bonser, 5 Or. 317, 20 Am. Rep. 737; Manaudas v. Mann, 14 Or. 452, 13 Pac, 449; Raymond v. Flavel, 27 Or. 241, 40 Pac. 158; Crossen v. Oliver, 37 Or. 521, 61 Pac. 885. No question is raised that notice to the cashier was not notice to the bank in this case.

Section 5630, B. & C. Comp., provides: "Any mortgage, deed of trust, conveyance, or other instrument of writing intended to operate as a mortgage of personal property alone, or with real property, shall be executed, witnessed, and acknowledged, or certified or proved, in the same manner as a conveyance of real property." Section 5631, B. & C. Comp., provides: "Any such mortgage * * * may

be recorded," etc. The mortgage to plaintiffs, not having been acknowledged, was not entitled to record under the section last mentioned, which limits the right of record to such mortgages and other instruments mentioned in section 5630 as "shall be executed, witnessed, and acknowledged, or certified or proved in the same manner as a conveyance of real property." The mere record of such unacknowledged mortgage would, therefore, import no notice of its existence, and it must, therefore, be treated as an unrecorded mort

Errett Hicks, for appellants. W. R. King gage. Musgrove v. Bonser, 5 Or. 316, 20 Am. and W. H. Brooke, for respondents.

HAILEY, J. (after stating the facts). The defendant urges two questions only: "First, was there actual notice to the bank of the existence of plaintiffs' mortgage at the time of taking its own mortgage? and, second, if there was such notice, was it sufficient to cure the defect in the execution of plaintiff's mortgage," caused by the want of an acknowledgment thereto? As stated in the language of defendant's brief, "the notice to the cashier was given when one of the plaintiffs presented for collection the $500 note described in plaintiffs' mortgage and told the cashier the plaintiffs had a mortgage on the sheep of Wickersham, the maker of the note," and it is admitted, in the agreed statement of facts, that the sheep referred to were

Rep. 737; Fleschner v. Sumpter, 12 Or. 167, 6 Pac. 506; Walker v. Goldsmith, 14 Or. 125, 12 Pac. 537; Jones, Chat. Mort. (4th Ed.) § 248. Defendant contends that plaintiffs' mortgage, not having been acknowledged in accordance with section 5630, supra, is not within the terms of the recording act referred to supra, and that only such mortgages as are executed, witnessed, and acknowledged or certified or proved in the same manner as a conveyance of real property come within the terms of section 5633, B. & C. Comp., which provides: "Every mortgage, deed of trust, conveyance, or instrument of writing intended to operate as a mortgage of personal property, either alone or with real property, hereafter made, which shall not be accompanied with immediate delivery and followed by the actual and continual

change of possession of the personal property mortgaged, or which shall not be recorded as provided in section 5631, shall be void as against subsequent purchasers and mortgagees in good faith and for a valuable consideration of the same personal property, or any portion thereof." In other words, that an unrecorded mortgage which does not strictly conform to the provisions of section 5630, supra, is void as to subsequent mortgagees and third parties, even though they take with notice of its existence. In support of this claim, several cases are cited from other states, based upon statutes which were found, upon examination, to make no limitation upon the character of third persons against whom an unrecorded mortgage is declared void, and are radically different in that respect from our statute which expressly declares that such mortgages "shall be void as against subsequent purchasers and mortgagees in good faith and for valuable. consideration of the same personal property." The effect of this statute is to limit its operation to the classes mentioned, and clearly implies that such mortgage is valid as to all others without being recorded. In Harms v. Silva, 91 Cal. 639, 27 Pac. 1088, under a statute which provided that a mortgage was void as against creditors of the mortgagor and subsequent purchasers and incumbrancers of the property, in good faith and for value, unless accompanied by a certain affidavit and acknowledgment, proved, certified, and recorded in like manner as grants of real property, it was held that an unacknowledged chattel mortgage was valid as against a subsequent mortgagee of the same property who took with full knowledge of such prior mortgage, and that, having so taken, he was not an incumbrancer in good faith. In Mendenhall v. Kratz, 14 Wash, 453, 44 Pac. 872, under a similar statute, a chattel mortgage, unaccompanied by the statutory affidavit and unacknowledged and unrecorded in the county where the property was sold to defendant until after the sale, was held valid against a defendant who had knowledge of its existence at the time he purchased. In that case the court by Anders, J., said: "No one can become a purchaser or an incumbrancer of property in good faith, if he have notice of a pre-existing mortgage, although such mortgage may not be recorded or verified in accordance with the statute." To the same effect are Roy & Co. v. Scott, Hartley & Co., 11 Wash. 406, 39 Pac. 679; and Darland v. Levins, 1 Wash. St. 582, 20 Pac. 309. In the latter case, subsequent mortgagees and purchasers of a band of sheep, all of whom took with notice of a prior unrecorded mortgege thereon for the purchase price thereof, claimed that such prior mortgage was void. as to them, but their claim was denied. This court has held in Manaudas v. Mann, supra, that an unacknowledged deed is valid between the parties and all others chargeable

with actual notice, and in Trust Co. v. Loewenberg, 38 Or. 163, 62 Pac. 647, that an instrument affecting lands, "although not executed or acknowledged so as to make it a formal mortgage, is, nevertheless, effective between the parties and subsequent purchasers, or attaching creditors with notice." Considering our statutes regarding the conveyances of real property, which are similar in effect to those regarding chattel mortgages, we think the principle involved in the foregoing cases is the same as in the case at bar. The defendant, having had notice of the plaintiffs' mortgage prior to taking its own, had all the notice the record of such mortgage could afford, and should be bound by such notice. To hold otherwise would make laws intended to prevent fraud the very instruments of fraud. Jackson v. Burgott, 10 Johns. (N. Y.) 462, 6 Am. Dec. 349. Recording acts are for the purpose of giving notice to those who have none, and thereby preventing wrong, and not for the purpose of giving undue advantage to those who have notice and thus enabling them to perpetrate wrong. The defendant, having notice, was not a mortgagee in good faith, and could gain no advantage by recording its mortgage in Grant county after the removal of the sheep to that county. Section 5632, B. & C. Comp., regulating the filing of mortgages in other counties to which the mortgaged property may be removed, applies the same test of good faith and valuable consideration to subsequent mortgagees in such counties as in the original county. The removal of the sheep to Grant county did not remove the defendant's knowledge of the plaintiffs' mortgage thereon.

The judgment is affirmed.

(48 Or. 587)

FIRST NAT. BANK OF PAYETTE, IDAHO, v. MILLER. (Supreme Court of Oregon. Dec. 11, 1906.) 1. APPEAL AND ERROR-BRIEFS-ASSIGNMENT OF ERROR.

Supreme Court Rule 32 subd. b (35 Or. 605), requiring appellant to serve a brief containing a concise statement of the errors on which he relies, is satisfied by a substantial compliance therewith.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 3, Appeal and Error, § 3091.]

2. SAME.

Where an assignment of errors in a brief stated that the court erred in giving, over objection and exception, certain instructions setting them out in distinct paragraphs containing but a small part of the entire charge, and not indicating the language complained of under separate assignments, the Supreme Court will not be so technical as to hold that if either of the parts of the charge so generally expressed correctly stated the law the entire assignment would be unavailing.

[Ed. Note. For cases in point, see Cent. Dig. vol. 3, Appeal and Error, §§ 3034, 3035.] 3. EVIDENCE-BEST EVIDENCE-WAIVER. Defendant called plaintiff's counsel as a witness, who testified without objection being

made that a certain exhibit was a correct copy of an original document used in a prior case and sent with the transcript of that case on appeal to the Supreme Court thereby becoming a part of the record. Held, that the identity of the exhibit having been thus established, the objection that it was not the best evidence, under P. & C. Comp. St. § 742. authorizing proof of records by production of the original or certified copy, was waived.

[Ed. Note. For cases in point, see Cent. Dig. vol. 20. Evidence, § 576.]

4. JUDGMENT ASSIGNMENT-POWER OF

TORNEY-REVOCATION-EVIDENCE.

Though the assignment of a judgment expressly appointed the assignee irrevocable attorney with power of substitution, such stipulation did not prevent the assignor from rescinding such authority unless coupled with an interest independent of compensation for the collection of the judgment, therefore it was proper to admit in evidence a letter from the assignee to the assignor stating that the assignment had been "entered for collection, proceeds of which when collected shall be subject to your order." 5. SAME-PAROL EVIDENCE.

Where a statement in an assignment of a judgment to a bank that the assignor appointed the bank its irrevocable attorney with power, of substitution created a doubt as to the intent of the assignment, rendering the instrument ambiguous, and tending to show that the transfer was made for some purpose without designing to vest an interest in the assignee, it was permissible for the assignor to testify what interest the assignee possessed.

Appeal from Circuit Court, Malheur County: George E. Davis, Judge.

Action by the First National Bank of Payette, Idaho, against William Miller. From a judgment for plaintiff. defendant appeals. Reversed.

This is an action by the First National Bank of Payette, Idaho, a corporation, against William Miller, to recover money. The facts are that the defendant, who is an attorney at law, commenced an action in the circuit court of Malheur county for one Henry Helmick against one O. W. Porter, and on April 11, 1903, recovered therein the sum of $2,930.22, including costs and disbursements. Sixteen days thereafter Helmick assigned the judgment to the plaintiff herein by an instrument appointing such corporation his irrevocable attorney with power of substitution, which transfer was immediately filed with the clerk of such court, and Miller notified thereof. Miller on June 29, 1903, collected the judgment, retained the sum of $200 as his fees, and paid the remainder to the Moss Mercantile Company, Limited, pursuant to Helmick's direction, and conformable to a previous writing of which the following is a copy: "Payette, Idaho, October 30, 1900. Mr. O. W. Porter, you are hereby authorized and directed to pay over to Moss Mercantile Company, Limited, all moneys which you are now owing me. [Signed] Henry Helmick." This action was thereupon commenced, the complaint stating that Miller, as the attorney of the plaintiff herein, received to its use the sum of $2,730.22, which, upon a demand therefor by it, he refused to

pay, and praying for the recovery thereof with interest. Thereafter the Moss Mercantile Company commenced a suit against the bank to enjoin the maintenance of this action, and such proceedings were had that the suit was dismissed. Moss Mercantile Co. v. First National Bank, 47 Or. 361, 82 Pac. S. 2 L. R. A. (N. S.) 657. The answer herein denies the material allegations of the complaint, and avers that Miller paid out the money believing that the assignment of the judgment to the plaintiff herein was in the interest of the Moss Mercantile Company, to discharge the order hereinbefore mentioned. It is further alleged that the plaintiff herein took an assignment of the judgment without any consideration therefor, agreeing to collect the sum so awarded as Helmick's agent, without compensation for its service. The allegations of new matter in the answer were denied in the reply, and the cause having been tried, judgment was rendered as prayed for in the complaint, from which Miller appeals.

J. II. Richards and O. O. Haga, for appellant. Will R. King, for respondent.

MOORE, J. (after stating the facts). At the threshold we are confronted with a motion to affirm the judgment, on the ground that the errors relied on for a reversal are not specified with sufficient certainty, and that the bill of exceptions violates the provisions of the statute (B. & C. Comp. § 171), by including therein matters not necessary to an explanation of the alleged assignments of error. This cause having been tried at Pendleton, the appellant was required to serve a brief containing a concise statement of the errors on which he relied. Subd. b. rule 32 of the Supreme Court (35 Or. 605). The assignments stated in Miller's brief are to the effect that the court erred in not permitting a certain witness to be cross-examined on matters within the issues, respecting which he had testified on his direct examination. setting out the questions asked. Seven oth er assignments in relation to the rejection of testimony and evidence are also noted in a similar manner. It is further stated in the brief mentioned that the court erred in giving certain instructions, setting out the exact language complained of, consisting of six paragraphs grouped under one heading of assignment, occupying two pages of the brief, and forming only a small part of the charge given. Four pages of the bill of exceptions are devoted to a history of the case of Helmick v. Porter; 22 to the rejection of testimony and evidence, and the remaining 23 to the court's statement of the issues involved, and the instructions deemed applicable thereto.

Reasonable latitude must be granted to counsel for the appellant in the statement of exceptions and in the preparation of a bill thereof, and because counsel, for the

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