Creecy v. Joy

• Citation: 66 P. 295,40 Or. 28
• Parties: CREECY v. JOY.
• Decision Date: 21 October 1901
• Court: Supreme Court of Oregon

66 P. 295

40 Or. 28

CREECY v. JOY.

Supreme Court of Oregon

October 21, 1901

Appeal from circuit court, Multnomah county; Alfred F. Sears, Judge.

Action on a promissory note by A.T. Creecy against R.Z. Joy. From a judgment in favor of defendant, plaintiff appeals. Reversed.

This is an action on a promissory note. The complaint, omitting the formal parts, is as follows: "That on or about the 16th day of June, 1893, the above-named defendant and one J.M Joy, for value received, made, executed, and delivered to this plaintiff their certain joint and several promissory note in writing, bearing date June 16, 1893, whereby and wherein the said R.Z. Joy and J.M. Joy jointly and severally promised and agreed to pay to the order of this plaintiff the sum of $165.50 in U.S. gold coin, with interest thereon in like gold coin at the rate of eight per cent. per annum from date until paid. That it was provided in said note, and made a part thereof, that, in case of suit or action being instituted to collect the said note or any portion thereof the said R.Z. Joy and J.M. Joy jointly and severally promised and agreed to pay such additional sum as the court might adjudge reasonable as attorney's fees in said suit or action. That some time after the execution and delivery of said note the said J.M. Joy died. That there is now due and owing on the said promissory note from the said defendant R.Z. Joy, to this plaintiff, the sum of $165.50 in U.S. gold coin, with interest thereon in like gold coin at the rate of eight per cent. per annum from the 16th day of June, 1893 and the same nor no part thereof has been paid. That the sum of $25 is a reasonable sum to be allowed plaintiff as attorney's fees in this action for the collection of the said note. That the plaintiff is the owner and holder of the said promissory note." The answer expressly admits the execution and delivery of the note in manner and form as alleged in the complaint, but denies that the makers "jointly and severally" promised to pay such additional sum as the court might adjudge reasonable as attorney's fees, or that there is "now due and owing" on such note from the defendant to the plaintiff the sum of $165.50, or any other sum, and denies that $25, or any other sum, is a reasonable attorney's fee. For a further and separate defense it is alleged that on the 22d of December, 1893, the defendant paid plaintiff the sum of $400 in full payment and satisfaction of all moneys and accounts at that time due and owing him. The reply put in issue the material allegations of the answer. Upon the trial the plaintiff, after giving evidence tending to prove the reasonable value of the attorney's fee for prosecuting the action, rested, when the defendant gave evidence tending to show that the note in suit had been settled in December, 1893, in a land trade with plaintiff. Plaintiff thereupon testified in rebuttal, without objection, that on June 16, 1893, the defendant and his father executed the promissory note sued on, and that it was not included in or made a part of the land transaction, nor had any part of it been paid, and it was due one day after date. After both parties had rested the defendant moved for a nonsuit on the ground that the plaintiff had failed to give any evidence tending to show when the note became due and payable. While this motion was pending and undisposed of the plaintiff offered in evidence a note which he claimed to be the one described in the complaint, and which conformed in all particulars to the allegations, except that it was a joint, and not a joint and several, note, and was due one day after date. Objection was made to its introduction, during the consideration of which the plaintiff asked permission to amend his complaint to conform to the proof by alleging that the note sued on was joint, and due one day after date. The court admitted the note in evidence, but refused to permit the amendment, and subsequently granted the motion for a nonsuit, and plaintiff appeals.

W.S. Hufford, for appellant.

BEAN, C.J. (after stating the facts).

The cause of action alleged in the complaint was, in our opinion, admitted by the answer, and no proof on the part of the plaintiff was necessary, except on the question of the attorney's fee. The answer expressly admits the execution and delivery of the note as alleged; and the denial that there was "due and owing" thereon the sum of $165.50, or any...