Beard v. Beard

• Court: Oregon Supreme Court
• Writing for the Court: [66 Or. 530] BEAN, J. (after stating the facts as above).
• Citation: Beard v. Beard, 66 Or. 526, 133 P. 795 (Or. 1913)
• Decision Date: 15 July 1913
• Parties: BEARD v. BEARD.

133 P. 795

66 Or. 526

BEARD v. BEARD.

Supreme Court of Oregon

July 15, 1913

Department 2.

Appeal from Circuit Court, Multnomah County: J.P. Kavanaugh, Judge.

Action by S. Roscoe Beard, as executor of S.M. Beard, deceased against A. Edgar Beard. Judgment for plaintiff, and defendant appeals. Affirmed.

This is an action to recover the possession of a certificate for 10 shares of stock in the Beard Fruit Company. It is alleged in the complaint that plaintiff, S. Roscoe Beard, was appointed as executor under the last will and testament of S.M. Beard deceased, and that he duly qualified as such; that his coexecutors were removed by order of the county court for Multnomah county, and that plaintiff thereupon became the sole executor of the estate; that as such executor plaintiff is the owner of and entitled to the immediate and exclusive possession of a certain certificate of stock issued by the Beard Fruit Company to S.M. Beard, deceased; that such certificate is within Multnomah county, Or., in the possession, custody, and control of the defendant; that plaintiff demanded possession of the certificate from defendant, who failed and neglected to deliver the same.

Concerning plaintiff's ownership and right of possession of the certificate, an affirmative defense is set up to the following effect: That on June 22, 1903, defendant loaned S.M. Beard $5,000, taking from him a promissory note for that amount, bearing the same date, due on or before two years after date, with interest at 8 per cent.; that as collateral security for such note, S.M. Beard pledged the certificate of stock in question with the defendant; that during the latter part of 1906, the note for $5,000 being wholly unpaid, it was agreed between the defendant and S.M. Beard that the latter should assign and deliver the certificate of stock to the defendant in payment of the note and the amount due thereof and that the defendant should surrender such promissory note that pursuant to said agreement the certificate for said stock was indorsed by S.M. Beard and delivered to the defendant in payment of the promissory note, and the defendant surrendered and delivered such note to S.M. Beard that by reason of this transaction the defendant became and now is the owner of the certificate of stock, and in the sole and exclusive possession of the same. The allegations contained in the affirmative defense of defendant's answer were denied by the plaintiff's reply. The cause was tried before a jury, and a verdict returned in favor of the plaintiff, finding him to be the owner and entitled to the possession of the certificate of stock. Defendant appeals from the judgment entered upon such verdict.

The plaintiff's ownership and right of possession depend entirely upon the ownership and right of possession of S.M. Beard at the time of his death, January 8, 1910. Upon the trial the plaintiff introduced evidence to the following effect: The Beard Fruit Company was organized under the laws of Washington by S.M. Beard, Mary E. Beard, and the defendant, A. Edgar Beard. It was capitalized for $10,000, and its authorized stock divided into 100 shares, 10 of which were issued to S.M. Beard, 40 in the name of defendant, and 50 in the name of Mary E. Beard. Various fruit lands owned by S.M. Beard were conveyed to the corporation, and constituted the wealth of the company. Mrs. Mary B. Gray (née Beard) testified that upon her return from California in September, 1902, all three certificates of stock were handed to her by S.M. Beard, to be kept for him until he should ask for them. This incident occurred in the bank at Vancouver. The three certificates were kept by her in an envelope marked "Beard Fruit Company" in her uncle's handwriting. Subsequent to that time she had possession of the certificates continuously until 1904, when defendant took them to Baker City. In the fall of 1905 she went to Baker, and upon her return in February, 1906, she brought back the certificates, and kept them in her possession until January, 1909. One evening at her home the defendant took the certificates, stating that he would place them in a vault where they would be safer than in her frame house. They remained in his possession until after the death of S.M. Beard.

Mrs. Gray's testimony in regard to the possession of the certificates was corroborated in the main by that of her husband, W.L. Gray, and by the written and oral statements of S.M. Beard, deceased. The certificate of stock in suit was issued originally to S.M. Beard. It is admitted that the plaintiff is the executor of the estate of S. M. Beard, deceased. Mrs. Gray's testimony was contradicted by Mrs. A. Edgar Beard, who states that she saw the certificates in the defendant's safe deposit box in June, 1908; by Charles L. Boss, who states that he saw one of the certificates in the defendant's possession at the office of Moline-Bain Company in 1902; by Mrs. Carrie E. Cadwell, one of the sisters; and by the defendant in every material particular.

R.A. Leiter, of Portland (Griffith, Leiter & Allen and F.J. Lonergan, all of Portland, on the brief), for appellant.

Wallace McCamant, of Portland (Snow & McCamant, of Portland, on the brief), for respondent.

BEAN, J. (after stating the facts as above).

The defendant contends that the court erred: (1) In overruling the motion for a judgment of nonsuit, made by the defendant at the close of plaintiff's evidence; and (2) in overruling the motion for a directed verdict in favor of the defendant, made at the close of all the evidence. These assignments may be considered together.

We take up the final consideration of this case after the suit...