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suing bank, and sent it to plaintiff at his opinion, competent evidence, and properly adrequest, and that it was not charged on the mitted. If the defendant, at plaintiff's rebooks of the bank to plaintiff. The draft quest, or by his authority, paid notes due the was, therefore, we think, competent in con

bank from him, and thus obtained possession nection with the testimony of the defendant, of such instruments, they are competent evias tending to show a payment by him to

dence in an action between the plaintiff and plaintiff, and is corroborative of his oral the defendant in which such payment is in testimony. The books of the bank, showing dispute. The payment of a negotiable instruthe transactions in connection with the draft , ment may be made by any person liable therewould, undoubtedly, have been more satis. i on or by his agent, and the party making the factory evidence than the oral testimony; . payment has a right to demand the possesbut that matter affected the weight, and not

sion of the instrument. Tiedeman, Con1. the competency, of the evidence. If, in fact, .Paper, $$ 372, 373. If, as defendant testifies, defendant purchased the draft with his own

ne made the payment as agent of the plainmoney, and forwarded it to the plaintiff, and

tiff, the possession of the notes with the canit was cashed by him and the proceds ap

cellation of the payee thereon was presumppropriated to his own use, it would be a pay- ;

tive evidence that they had been paid and ment by defendant to plaintiff of the amount

were admissible as such. State v. Brooks, of such draft. And this is what the evi.

SJ Iowa, 360. 52 N. W. 210. dence tended to show.

Assignment No. 8 is based on the admisThe second assignment of error is based on

sion in evidence of three promissory notes the admission as eridence of payment by de

made by the plaintiff to the Farmers' &

Traders' National Bank for $100, $150, and fendant to plaintiff of a draft drawn by the plaintiff on the Farmers' & Traders' National

S200, respectively, and having attached there

to a check of defendant, payable to plainBank payable to the First National Bank

tiff or bearer for $601.31. The defendant tesof Baker City. The defendant testified that

tified in relation to these notes and check when this draft was presented for payment

that on or about October 1, 1903, he had a to the pre bank: “I took care of it and

settlement with the plaintiff, and, at plainpaid it out of my own funds." But the

tiff's request. took up and paid the three draft, as offered and admitted in evidence, is

notes by giving the check attached, and that not corroborative of this testimony. It shows

the difference between the amount due on il transaktion between the plaintiff and the

them and the check was paid to plaintiff in drawee bank, and there is stamped on the

cash, and the check charged to his account face of it by the bank the word “Paid."

on the bank books. The notes were properly It was evidence of a payment by the bank to

admitted for the reasons given in the preplaintiff, but not of the payment of money

ceding assignment of error. The check was by defenılant to plaintiff or on his account

a part of the same transaction, and attached without showing that the draft was not paid

to the notes, and was likewise competent for from the funds of the plaintiff or that de

whatever the jury might consider it worth. fendant deposited with the bank to plaintiff's

To prove certain alleged payments, the decredit money with which to take care of it.

fendant testified that on the dates and at the It was drawn by the plaintiff on a bank in

times mentioned, he deposited with the Farmwhich he had an open account, and paid by

ers' & Traders' National Bank certain sums such bank, presumably out of the funds of

to the credit of the plaintiff, and as evi: the drawer or charged to his account, and it

dence of such deposits produced and there is not perceived how the defendant, who is

were admitted in evidence over plaintiff's obthe cashier of the bank, can claim credit jection and exception, sundry memoranda or as against the plaintiff for such payment by deposit tags, such as are generally made out simply producing the draft from the bank

by or for a depositor in a bank, and handed files and testifying that when presented it in with his deposit book, stating the amount was paid by him, without producing the bank he is depositing. These memoranda or tags records. In the nature of things the draft were in the handwriting of the defendant, must have passed through the bank, and its and it does not appear that any of them records are the proper evidence of its pay- were ever delivered to or received by the ment and by whom. The same rule will bank, or that the bank in any way became apply to the draft for $100 drawn by plain- | liable to plaintiff on account of such alleged tiff on the Farmers' & Traders' National deposits. It is therefore manifest that standBank in favor of Will Wright.

ing alone they were not competent evidence to The third, fourth, fifth, and sixth assign- show that defendant had paid money to the ments of error relate to the admission in evi- bank on plaintiff's account. They were not dence of four promissory notes given by the made out by the bank or any of its officers plaintiff to the Farmers' & Traders' National for it, and were not acknowledgments or adBank. These notes were produced on the missions by the bank of the receipt of the trial by the defendant marked "Paid" by the money. The fact that the defendant testibank, and he testified that they were paid fied that he took the slips from the bank by him at the request of the plaintiff or by | files did not make them competent evidence his authority. They were, therefore, in our of the receipt of money by the bank. He was the cashier, had the custody of the though such mortgage as appeared on its face bank's papers and files, and it would have was given to secure another note as well, of been an easy matter for him if he had been

which no mention was made.

[Ed. Note.For cases in point, see Cent. Dig. so disposed to have made out deposit slips

vol. 9, Chattel Mortgages, § 242.] or tags at pleasure, and placed them among

2. ACKNOWLEDGMENT · RECORD OF UNACthe bank files without the bank in any way

KNOWLEDGED MORTGAGE-EFFECT. being bound thereby. Before such slips are B. & C. Comp. § 5630, provides that a competent evidence of the payment of money

chattel mortgage shall be acknowledged in the by the defendant to the bank on plaintiff's

same manner as a conveyance of real property.

Section 5631 provides: "Any such mortgage account there should be some showing that * * *

may be recorded," etc. ileid, that the the plaintiff had received credit therefor on recording of an unacknowledged mortgage imthe bank books or that the bank had in some

ports no notice of its existence. way acknowledged liability for the amount

[Ed. Note.-For cases in point, see Cent. Dig.

vol. 1, Acknowledgment, $$ 43, 55.] thereof and became bound to pay the same. The remaining assignments of error relate


B. & C. Comp. $ 5633, provides that every to the instructions of the court. It is un

mortgage, not accompanied with delivery or renecessary, in view of a new trial, to notice corded as provided in section 5031, shall be any of them except the one that "as to items void as against subsequent mortgagees "in good claimed as a defense here by Mr. Scriber, if a

faith and for a valuable consideration.” Section

5631 authorizes the recording of chattel mortdefense here, they cannot be legally claimed

gages acknowledged as required by section 5630. as a defense by the bank in its action." This II eld, that a chattel mortgage was valid as instruction, while it may be sound as an ab

against a subsequent mortgagee having actual

notice thereof, though, owing to lack of acstract proposition of law, was, we think, im

knowledgment as required by section 5031, the proper and misleading to the jury. It ap- record of the prior mortgage under section 5631 peared that during the transactions in dis- was of no effect. pute between the plaintiff and the defendant,

[Ed. Note.For cases in point, see Cent. Dig.

vol. 9, Chattel Mortgages, SS 242, 264.] the plaintiff had an account with the bank, and that there was a controversy between


B. & C. Comp. $ 5632, provides that, when him and the bank as to the state of such ac

the property is removed to another county, the count. The instructions, as given, would lien will not be sustained as to subsequent mortprobably lead the jury to believe that it was gagees in good faith and for a valuable connot very important whether the defendant

sideration unless recorded there within 30 days.

II eld, that the removal of the property to ansatisfactorily made out his defense of pay

other county after the execution of both mort. ment, because plaintiff would receive credit gages and the subsequent recording there of on his account with the bank with any

both mortgages did not change the rights of

the two mortgagees. amount they might allow the defendant and, therefore, could not be injured. The bank, Appeal from Circuit Court, Grant County ; however, was not a party to this action, and Geo. E. Davis, Judge. would not be bound in any way by the result. Action by S. S. Williams and another Any credit the jury might allow the defend- against the First National Bank of Ontario ant for money alleged to have been paid to and others. From a judgment in favor of him by the bank for plaintiff's benefit would plaintiffs, defendants appeal. Affirmed. not preclude the bank from denying such

This is an action to recover possession payment, unless it had in fact been made or

of 2,316 sheep mortgaged to plaintiffs by L. the bank had become liable to plaintiff there

S. Wickersham, the owner thereof, who afterfor. The fact that the plaintiff was at the

wards mortgaged them to the defendant same time dealing with the defendant in his

bank, which claims a right to their possesindividual capacity, and as cashier of the

sion under its mortgage. The case was tried bank, renders it difficult to keep the several

by the court without the intervention of transactions separate; but it is important for

a jury, upon an agreed statement of facts, the rights of all parties that it should be

from which it appears that on August 2, done as nearly as possible.

1902, Wickersham gave plaintiffs a mortgage It follows from these views that the judg

upon the sheep in controversy to secure the ment of the court below must be reversed, | payment of $4,125, part of the purchase price and the cause remanded for a new trial.

thereof, evidenced by two notes, one for $500

due July 15, 1903, and the other for $3,625 (-i8 Or. 571)

due September 15, 1904, with interest at WILLIAMS et al. v. FIRST NAT. BANK OF

10 per cent. per annum from September 15, ONTARIO et al.

1902, payable annually; which mortgage was

properly executed and witnessed but not ac(Supreme Court of Oregon. Dec. 11, 1906.)


recorded in Malheur county, and on July 8, One of the payees of a note, when he left it

1904, in Grant county; that on July 8, 1903, at a bank for collection, informed the bank that | Wickersham gave the defendant First Nationthe payees had a mortgage on the maker's sheep, al Bank of Ontario a mortgage on the same referring thereby to sheep on which the bank afterwards took a mortgage. Held a sufficient

sheep to secure the payment of a promissory actual notice of a mortgage covering such sheep, note for $500 that day executed by him to the bank, and due in six months after date, those covered by the two mortgages. Defend. which mortgage was properly executed, wit- ant claims that this notice is not sufficient, nessed, and acknowledged, and on the next in that "it does not appear to what this noday recorded in Malheur county, and after- tice extended, nor does it appear that the wards, on the 29th day of June, 1904, re- other note described in the mortgage was corded in Grant county, to which latter coun- mentioned.” How actual notice of the mortty the sheep covered by said mortgages had gage could have been given more directly been removed on the 15th day of June, 1904. than by these admitted facts, we fail to see, In July, 1904, the defendant bank obtained unless by producing and exhibiting the mortpossession of all the sheep covered by its gage itself or reciting its contents. The mortgage by an action of claim and delivery notice clearly extended to the sheep upon commenced by it against the mortgagor

which defendant afterwards took its mortWickersham, and thereafter, on July 13, 1901, gage, and had reference to the mortgage the plaintiffs commenced this action of claim given thereon to plaintiffs, in which both and delivery for the sheep against the bank notes secured thereby were mentioned. The and other defendants herein, but, accord- cashier was told by one of the mortgagees of ing to the stipulated facts, the other de- its existence, and could have learned from fendants have no interest in this action. It the same source its full terms, and such is further agreed that on the - day of notice was sufficient. Bohlman v. Coffin and June, 1903, prior to the execution and de- Carter, 4 Or. 318; Musgrove v. Bonser, 5 livery by Wickersham of the mortgage to the Or. 317, 20 Am. Rep. 737; Manaudas v. defendant bank, one of the plaintiffs. I. S. Mann, 14 Or. 452, 13 Pac, 449; Raymond v. Goodwin went to the bank and left with E. Flavel, 27 Or. 241, 40 Pac. 158; Crossen v. H. Test, its cashier, for collection, the $500 Oliver, 37 Or. 521, 61 Pac. 885. No question note secured by plaintiffs' mortgage, "and , is raised that notice to the cashier was then and there informed the said cashier that not notice to the bank in this case. he, the said Goodwin, and S. S. Williams had Section 5630, B. & c. Comp., provides: “Any a chattel mortgage upon the sheep owned by mortgage, deed of trust, conveyance, or other the said Wickersham and which are describ- instrument of writing intended to operate as ed in the mortgages of both plaintiffs and a mortgage of personal property alone, or defendant bank.” It is also stipulated that with real property, shall be executed, witnessdefault had been made in the conditions of

ed, and acknowledged, or certified or proved, both mortgages; and that Test was cashier in the same manner as a conveyance of real of the bank when its mortgage was taken, property." Section 5631, B. & C..Comp., proand witnessed the same. There are other vides: "Any such mortgage

* facts stipulated, but not deeming them nec- be recorded,” etc. The mortgage to plainessary to the determination of the questions tiffs, not having been acknowledged, was not involved in this suit, we refrain from recit

entitled to record under the section last mening them. The court entered judgment in

tioned, which limits the right of record to favor of the plaintiffs for the possession of

such mortgages and other instruments menthe mortgaged property and costs, it appear- tioned in section 5630 as "shall be executed, ing from the record that possession of the

witnessed, and acknowledged, or certified or sheep had been obtained by the plaintiffs

proved in the same manner as a conveyance theretofore by affidavit and an undertaking

of real property.” The mere record of such as provided by the Code in actions for claim

unacknowledged mortgage would, therefore, and delivery. From this judgment, the de

import no notice of its existence, and it must, fendant bank appealed.

therefore, be treated as an unrecorded mortErrett Hicks, for appellants. W. R. King gage. Musgrove v. Bonser, 5 Or. 316, 20 Am. and W. H. Brooke, for respondents.

Rep. 737; Fleschner v. Sumpter, 12 Or. 167,

6 Pac. 506; Walker v. Goldsmith, 14 Or. 125, HAILEY, J. (after stating the facts). The 12 Pac. 537; Jones, Chat. Mort. (4th Ed.) defendant urges two questions only: "First,

$ 248. Defendant contends that plaintiffs' was there actual notice to the bank of the mortgage, not having been acknowledged in existence of plaintiffs' mortgage at the time

accordance with section 5630, supra, is not of taking its own mortgage? and, second, if within the terms of the recording act rethere was such notice, was it sufficient to ferred to supra, and that only such mortgages cure the defect in the execution of plaintiff's as are executed, witnessed, and acknowledg. mortgage,” caused by the want of an ac- ed or certified or proved in the same man. knowledgment thereto? As stated in the ner as a conveyance of real property come language of defendant's brief, “the notice to within the terms of section 5633, B. & C. the cashier was given when one of the plain- Comp., which provides: "Every mortgage, tiffs presented for collection the $500 note deed of trust, conveyance, or instrument of described in plaintiffs' mortgage and told the writing intended to operate as a mortgage cashier the plaintiffs had a mortgage on the of personal property, either alone or with sheep of Wickersham, the maker of the note," real property, hereafter made, which shall and it is admitted, in the agreed statement not be accompanied with immediate delivery of facts, that the sheep referred to were and followed by the actual and continual

* may change of possession of the personal prop- with actual notice, and in Trust Co. v. Loeerty mortgaged, or which shall not be record- wenberg, 38 Or. 163, 62 Pac. 647, that an ined as provided in section 5631, shall be void strument affecting lands, "although not exas against subsequent purchasers and mort- ecuted or acknowledged so as to make it a guagees in good faith and for a valuable con- formal mortgage, is, nevertheless, effective sideration of the same personal property, or between the parties and subsequent purchasany portion thereof." In other words, that ers, or attaching creditors with notice." Conan unrecorded mortgage which does not sidering our statutes regarding the conveystrictly conform to the provisions of section ances of real property, which are similar in 5630, supra, is void as to subsequent mort- effect to those regarding chattel mortgages, gagees and third parties, even though they we think the principle involved in the foretake with notice of its existence. In support going cases is the same as in the case at bar. of this claim, several cases are cited from The defendant, having had notice of the other states, based upon statutes which were plaintiffs' mortgage prior to taking its own, found, upon examination, to make no limi

had all the notice the record of such morttation upon the character of third persons gage could afford, and should be bound by against whom an unrecorded mortgige is de- such notice. To hold otherwise would make clared void, and are radically different in laws intended to prevent fraud the very inthat respect from our statute which express

struments of fraud. Jackson v. Burgott, 10 ly declares that such mortgages "shall be Johns. (V. Y.) 462, 6 Am. Dec. 319. Recordvoid as against subsequent purchasers and ing acts are for the purpose of giving notice inortgagees in good faith and for valuable to those who have none, and thereby preconsideration of the same personal property.”

venting wrong, and not for the purpose of The effect of this statute is to limit its oper- giving undue advantage to those who have ation to the classes mentioned, and clearly notice and thus enabling them to perpetrate implies that such mortgage is valid as to all wrong. The defendant, having notice, was others without being recorded. In Harms not a mortgagee in good faith, and could v. Silva, 91 Cal. 639, 27 Pac. 1088, under a

gain no advantage by recording its mortstatute which provided that a mortgage was

gage in Grant county after the removal void as against creditors of the mortgagor

of the sheep to that county. Section 5632, and subsequent purchasers and incumbran

B. & C. Comp., regulating the filing of mort('ers of the property, in good faith and for

gages in other counties to which the mortvalue, unless accompanied by a certain affi

gaged property may be removed, applies davit and acknowledgment, proved, certified,

the same test of good faith and valuable and recorded in like manner as grants of

consideration to subsequent mortgagees in real property, it was held that an unacknowl

such counties as in the original county. The edged chattel mortgage was valid as against

removal of the sheep to Grant county did a subsequent mortgagee of the same property

not remove the defendant's knowledge of the who took with full knowledge of such prior

plaintiffs' mortgage thereon. mortgage, and that, having so taken, he was

The judgment is affirmed. not an incumbrancer in good faith. In Mendenhall v. Kratz, 14 Wash. 453, 44 Pac. 872,

(48 Or. 587) under a similar statute, a chattel mortgage,

FIRST NAT. BANK OF PAYETTE, IDAIIO, unaccompanied by the statutory affidavit and

v. MILLER. unacknowledged and unrecorded in the coun

(Supreme Court of Oregon. Dec. 11, 1906.) ty where the property was sold to defendant until after the sale, was held valid against


OF ERROR. a defendant who had knowledge of its exist- Supreme Court Rule 32 subd. b (35 Or. 605), ence at the time he purchased. In that case requiring appellant to serve a brief containing the court by Anders, J., said: “No one can

a concise statement of the errors on which he

relies, is satisfied by a substantial compliance become a purchaser or an incumbrancer of

therewith. property in good faith, if he have notice of

[Ed. Note.--For cases in point, see Cent. Dig. a pre-existing mortgage, although such mort- vol. 3, Appeal and Error, $ 3091.] gage may not be recorded or verified in ac

2. SAME. cordance with the statute." ” To the same Where an assignment of errors in a brief effect are Roy & Co. v. Scott, Hartley & Co.,

stated that the court erred in giving, over ob

jection and exception, certain instructions set11 Wash. 406, 39 Pac. 679; and Darland

ting them out in distinct paragraphs containing v. Levins, 1 Wash. St. 582, 20 Pac. 309. In

but a small part of the entire charge, and not the latter case, subsequent mortgagees and

indicating the language complained of under purchasers of a band of sheep, all of whom

separate assignments, the Supreme Court will

not be so technical as to hold that if either of took with notice of a prior unrecorded mort- the parts of the charge so generally expressed gege thereon for the purchase price thereof, correctly stated the law the entire assignment claimed that such prior mortgage was void

would be unavailing.

[Ed. Note.-For cases in point, see Cent. Dig. as to them, but their claim was denied. This

vol. 3, Appeal and Error, $$ 3034, 3035.] court has held in Manaudas v. Mann, supra,

3. EVIDENCE-BEST EVIDENCE-WAIVER. that an unacknowledged deed is valid be

Defendant called plaintiff's counsel as a tween the parties and all others chargeable witness, who testified without objection being

made that a certain exhibit was a correct copy pay, and praying for the recovery thereof of an original document used in a prior case with interest. Thereafter the loss Mercan. and sent with the transcript of that case on

tile Company commenced a suit against the appeal to the Supreme Court thereby becoming a part of the record. Hcld, that the identity

bank to enjoin the maintenance of this acof the exhibit having been thus established, the tion, and such proceedings were had that the objection that it was not the best evidence, suit was dismissed. Joss Mercantile Co. v. under P. & C. Comp. St. $ 742, authorizing

First National Bank, 17 Or. 301, 32 Pac. S. proof of records by production of the original or certified copy, was waived.

2 L. R. A. (X. S.) 657. The answer herein [Ed. Xote.-For cases in point, see Cent. Dig. denies the material allegations of the comvol. 20. Evidence, $ 576.]

plaint, and avers that Miller paid out the 4. JUDGMENT-ASSIGNMENT-POWER OF AT

money believing that the assignment of the TORXEY-REVOCATION-EVIDENCE.

judgment to the plaintiff herein was in the Though the assignment of a judgment ex

interest of the Moss Mercantile Company, pressly appointed the assignee irrevocable attorney with power of substitution, such stipula

to discharge the order hereinbefore mentiontion did not prevent the assignor from rescind- ed. It is further alleged that the plaintiff ing such authority unless coupled with an inter- herein took an assignment of the judgment est independent of compensation for the collec

without any consideration therefor, agreeing tion of the judgment, therefore it was proper to admit in evidence a letter from the assignee

to collect the sum so awarded as Helmick's to the assignor stating that the assignment had agent, without compensation for its servbeen "entered for collection, proceeds of which

ice. The allegations of new matter in the when collected shall be subject to your order."

answer were denied in the reply, and the 5. SAME-PAROL EVIDENCE.

cause having been tried, judgment was rellWhere a statement in an assignment of a judgment to a bank that the assignor appointed

dered as prayed for in the complaint, from the bank its irrevocable attorney with power, which Miller appeals. of substitution created a doubt as to the intent of the assignment, rendering the instrument

J. II. Richards and 0. 0. lIagil, for apambiguous, and tending to show that the trans- pellant. Will R. King, for respondent. fer was made for some purpose without designing to rest an interest in the assignee, it was permissible for the assignor to testify what

MOORE, J. (after stating the facts). At interest the assignee possessed.

the threshold we are confronted with a motion

to affirm the judgment, on the ground that Appeal from Circuit Court, Malheur Coun

the errors relied on for a reversal are not ty; George E. Davis, Judge.

specified with sufficient certainty, and that Action by the First National Bank of Pay

the bill of exceptions violates the provisions ette, Idaho, against William Miller. From

of the statute (B. & C. Comp. $ 171), by ina judgment for plaintiff. defendant appeals.cluding therein matters not necessary to an Reversed.

explanation of the alleged assignments of This is an action by the First National error. This cause having been tried at PenBank of Payette, Idaho, a corporation, against dleton, the appellant was required to serve William Miller, to recover money. The facts a brief containing a concise statement of the are that the defendant, who is an attorney errors on which he relied. Subd. b, rule 32 at law, commenced an action in the circuit of the Supreme Court (35 Or. 605). The ascourt of Malheur county for one Henry IIel- signments stated in Miller's brief are to the mick against one 0. W. Porter, and on April effect that the court erred in not permitting 11, 1903, recovered therein the sum of $2,- a certain witness to be cross-examined on 930.22, including costs and disbursements. matters within the issues, respecting whichi Sixteen days thereafter Helmick assigned the he had testified on his direct examinationi, judgment to the plaintiff herein by an in- setting out the questions asked. Seven othstrument appointing such corporation bis ir- er assignments in relation to the rejection of Terocable attorney with power of substitu- testimony and evidence are also noted in a tion, which transfer was immediately filed similar manner. It is further stated in the with the clerk of such court, and Miller brief mentioned that the court erred in giving notified thereof. Miller on June 29, 1903, certain instructions, setting out the exact lancollected the judgment, retained the sum of guage complained of, consisting of six para$200 as his fees, and paid the remainder graphs grouped under one heading of asto the Moss Mercantile Company, Limited, signment, occupying two pages of the brief, pursuant to Helmick's direction, and con- and forming only a small part of the charge formable to a previous writing of which the given. Four pages of the bill of exceptions following is a copy: “Payette, Idaho, October are devoted to a history of the case of Hel30, 1900. Mr. 0. W. Porter, you are hereby mick v. l'orter; 22 to the rejection of testiauthorized and directed to pay over to Moss mony and evidence, and the remaining 2:3 Mercantile Company, Limited, all moneys to the court's statement of the issues inwhich you are now owing me. [Signed] volved, and the instructions deemed applicaIIenry IIelmick.” This action was thereupon ble thereto. commenced, the complaint stating that Miller, Reasonable latitude must be granted to as the attorney of the plaintiff herein, re- counsel for the appellant in the statement ceived to its use the sum of $2,730.22, which, of exceptions and in the preparation of a upon a demand therefor by it, he refused to bill thereof, and because counsel, for the

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