Commercial Credit Corp. v. Marden
| Decision Date | 24 November 1936 |
| Citation | 62 P.2d 573,155 Or. 29 |
| Parties | COMMERCIAL CREDIT CORPORATION v. MARDEN et al. |
| Court | Oregon Supreme Court |
Department 2.
Appeal from Circuit Court, Wasco County; Fred W. Wilson, Judge.
Action by the Commercial Credit Corporation, formerly named the Continental Guaranty Corporation, against Victor Marden and others. From a judgment dismissing the action, plaintiff appeals.
Affirmed.
Carlton L. Pepper, of The Dalles (Maguire, Shields & Morrison, of Portland, on the brief), for appellant.
T Leland Brown, of The Dalles, and George H. Brewster, of Redmond (Brown & Van Vactor, of The Dalles, and George H Brewster, of Redmond, on the brief), for respondents.
This action was brought by Commercial Credit Corporation, a corporation of which the name was formerly Continental Guaranty Corporation, against Victor Marden, Matthew M Blunt, Mace Fulton, and Ed Ball, on a bond alleged to have been executed by them as sureties. The defendants demurred to the complaint on the ground that the action was not instituted within the statutory period and that the complaint did not state facts sufficient to constitute a cause of action against the defendants. From a judgment dismissing the action after the demurrer to the complaint had been sustained, the plaintiff prosecutes this appeal.
The complaint alleges that on April 13, 1921, Continental Guaranty Corporation commenced an action in the circuit court of the state of Oregon for Wasco county against Motor Service Company, a corporation, Frank E. Burden and May Burden, to recover from those defendants the sum of $2,236.95 with interest, and attorneys' fees, upon an express contract for the payment of money; that after the filing of the complaint and the issuance of summons a writ of attachment was issued out of the court in which the action was pending, directing the sheriff of Wasco county to attach all property in that county belonging to the defendants or any of them; that the said sheriff, in obedience to the command of the writ, went to the place of business of Motor Service Company, which corporation at that time was operating a retail store at The Dalles, Oregon; and that "for the purpose of preventing the levy of said writ upon said property and for the purpose of indemnifying this plaintiff and said sheriff, the said defendants then and there executed and delivered to said sheriff a certain bond or undertaking in the sum of $2,600.00 in form conditioned to pay any judgment that this plaintiff, then called Continental Guaranty Corporation, might obtain in said action, which said bond was in words and figures as follows:
) ss.
The complaint further alleges that the sheriff and the plaintiff in the action then pending in Wasco county "thereupon and thereby accepted the said bond as a good, valid and sufficient bond in lieu of the attachment of said property"; and "that by reason of the execution and delivery of said bond by said defendants and the delivery to and the acceptance thereof by said sheriff and plaintiff, no attachment of said property was ever made."
On June 29, 1927, the plaintiff in that action recovered judgment against the defendants therein and each of them in the sum of $3,133.51, with interest, and costs taxed in the sum of $16. Judgment is demanded in the present action against each of the defendants in the sum of $2,600, with interest thereon at the rate of 6 per cent. per annum from June 29, 1927.
The bond or undertaking on which this action is based is not a statutory bond. It was not given pursuant to section 4-411, Oregon Code 1930, as a redelivery bond after property had been attached, or pursuant to section 4-417, Oregon Code 1930, for a discharge of attachment. It is in effect, as admitted by both the plaintiff and the defendants, an undertaking to pay any judgment which might be recovered by the plaintiff in the action in which the bond was given, in consideration of the sheriff's refraining from attaching property of the defendants in that action. As such obligation, it is not required to be sealed or to be accompanied by affidavit as to financial qualification of the sureties.
It is admitted by both the plaintiff and the defendants that the undertaking here involved is an agreement by the defendants herein to answer for the debt or default of Motor Service Corporation, Frank E. Burden, and May Burden, and, as such undertaking, is within the statute of frauds.
The signatures of the defendants herein do not appear in the space provided for them immediately after the body of the bond, but only appended to the affidavit following the bond. It is the defendants' contention that the instrument sued upon was not "subscribed" by these defendants as required by section 9-909, Oregon Code 1930, which section, as far as applicable here, is as follows:
The plaintiff takes the position that the word "subscribed" as used in the above statute is synonymous and interchangeable with "signed"; that as long as the signatures of these defendants appear anywhere on the undertaking there is a full compliance with the requirement of the statute of frauds; and that, even if the word "subscribed" be given its literal meaning, the statute is still served by the placing of defendants' signatures at the bottom of the affidavit.
In 1854 the territorial Legislative Assembly of Oregon enacted a statute of frauds in which it was provided that all agreements, contracts, and promises in certain instances should be void unless Statutes of Oregon 1854, p. 483; Statutes of Oregon 1854-55, p. 527. This statute very closely followed the wording and arrangement of the New York statute of frauds as the same appeared at page 70 of volume 2, 2d Ed., Revised Statutes of New York, published in 1836 (section 2), with the notable exception that the word "signed" in the Oregon territorial act was substituted for the word "subscribed" appearing in the New York act.
The statute of frauds enacted in Oregon in 1854 was a part of what was commonly referred to as the Code of Civil Procedure, prepared by James K. Kelly, Reuben P. Boise, and Daniel R. Bigelow, commissioners appointed by the Legislative Assembly of 1853. In the preparation of this code the commissioners, according to James K. Kelly, by common consent agreed to accept the New York Code of Practice as the basis of the Oregon Code, with the exception of its application to proceedings in equity. IV Oregon Historical Quarterly, 1855.
In Oregon Statutes published in 1854 and 1855, respectively, there is an explanatory foreword by the public printer, reading in part as follows:
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