Cunning v. Locke

• Decision Date: 14 July 1927
• Parties: CUNNING v. LOCKE ET AL.
• Court: Oregon Supreme Court

258 P. 192

122 Or. 225

CUNNING v. LOCKE ET AL.

Supreme Court of Oregon, En Banc.

July 14, 1927

Appeal from Circuit Court, Deschutes County; T. E. J. Duffy, Judge.

Action by Max Cunning, trustee, against Wilbur D Locke, the Central Oregon Loan Company, and others. Judgment for plaintiff, and defendant company appeals. Affirmed.

H. E. Slattery, of Eugene, for appellant.

George H. Brewster, of Redmond (L. M. Bechtell, of Prineville, on the brief), for respondent.

BURNETT C.J.

The plaintiff brings this action against W. D. Locke as maker and the Central Oregon Loan Company as indorser of a promissory note reading thus:

"May 15, 1925.

$2,500.00

"Six months after date, for value received, I or we jointly and severally promise to pay to the Central Oregon Loan Company or order, at its office in Redmond, Oregon, ______ dollars, payable in installments as follows: $105 on June 15, 1925; $105 on July 15, 1925; $105 on August 15, 1925; $105 on September 15, 1925; $105 on October 15, 1925; $2,171.78 on November 15, 1925--with interest at the rate of 7 per cent. per annum from May 15 1925. The makers, indorsers, assigners, and sureties severally waive presentment for payment, demand, protest, and notice of nonpayment of this note.

"In case of default in payment of any installment of this note the balance then unpaid shall, at the option of the holder thereof, become immediately due and payable.

"In case suit or action is instituted to collect this note or any part thereof, I, or we, jointly and severally promise to pay such additional sum as the court may adjudge reasonable as attorney's fees in said action.

Wilbur D. Locke.

"Ft. Klamath, Oregon."

It seems that this note was indorsed, "Pay to the order of ______, Central Oregon Loan Company, by Naomi Hoskins, Secy. Treas." It is averred in the complaint, in substance that thus indorsed it was delivered to the plaintiff February 2, 1926, for value, and that Naomi Hoskins had authority so to indorse it. It is claimed by the complaint that there is a balance due on account of the note in the sum of $529.32 with interest thereon at 7 per cent. per annum from March 10 1926, and that $100 is a reasonable attorney fee for the action. The answer denies all the allegations of the complaint except the corporate existence of the defendant company and that Naomi Hoskins was the secretary and treasurer of the corporation. Her authority to indorse the note is denied. The principal defense is that the note was not negotiable because a chattel mortgage was given to secure the note and both the note and the chattel mortgage were embodied in a single instrument and, inasmuch as there were agreements in this instrument not contained or permitted in the statutory promissory note, it destroyed the negotiability.

It is not necessary to consider this question because the answer of the defendants contains the following allegations:

"The defendants further severally aver

...