Douglas v. Rumelin

• Decision Date: 17 September 1929
• Citation: 130 Or. 375,280 P. 329
• Parties: DOUGLAS v. RUMELIN ET AL.
• Court: Oregon Supreme Court

280 P. 329

130 Or. 375

DOUGLAS v. RUMELIN ET AL.

Supreme Court of Oregon

September 17, 1929

Department 2.

Appeal from Circuit Court, Multnomah County; Robert G. Morrow Judge.

Action by James A. Douglas against C. E. Rumelin and another copartners conducting their business under the firm name of Ashley & Rumelin. Judgment for plaintiff, and defendants appeal. Affirmed.

This is an appeal from a judgment in favor of plaintiff and against defendants, based on a verdict. This is the second appeal. The former was an appeal by plaintiff from a judgment based upon an involuntary nonsuit. The judgment was reversed and remanded for a new trial. Douglas v. Rumelin et al., 125 Or. 261, 264 P. 852, 266 P. 624. Defendants appeal assigning some 15 alleged errors, only 6 of which are presented in their briefs. The others are deemed to have been waived. The first is based upon the contention that the complaint does not state facts sufficient to constitute a cause of action; the second is based on the court's order denying an involuntary nonsuit; the third, fourth, and fifth are based on the court's refusal to give instructions requested by defendants; the sixth is the court's refusal to set aside the verdict on defendant's motion. For a more complete statement of the facts and issues, see Douglas v. Rumelin et al., above.

George Black, Jr., of Portland (Platt, Platt, Fales & Smith, of Portland, on the brief), for appellant.

William A. Carter and MacCormac Snow, both of Portland (Franklin F. Korell, of Portland, on the brief), for respondent.

COSHOW C.J.

It is elementary that the decision of this court in any particular case becomes the law of that case. Hostetler v. Eccles, 112 Or. 572, 579, 230 P. 549. Assignments of error 1 and 2 raise the identical issue determined against defendants in the former appeal. That issue will not be further discussed, except to add that one who signs his name to a waiver on the back of a note may be both guarantor and indorser. The liabilities of a guarantor of negotiable paper are not fixed by the Negotiable Instruments Law. There is nothing to prevent the same person being both guarantor and indorser. 8 C.J. 71, 72, §§ 107-112; 2 Daniel on Negotiable Instruments (5th Ed.) 789, § 1754. We further add, as appears from the opinion in Noble v. Beeman-Spaulding-Woodward Co., 65 Or. 93, 131 P. 1006, 46 L. R. A. (N. S.) 162, the issue was the relation of Noble to the makers and accommodation makers of the note. There is a real difference between the relation of an indorser or guarantor and the maker and other parties to a note than the relation of such guarantor and indorser to the payee or holder in due course of the note. The learned justice, who wrote the opinion in Noble v. Beeman-Spaulding-Woodward Co., above, calls attention to the real issue therein. 3 R. C. L. 1189, § 411; Id. 975, 1122, 1129, 1133, 1135, §§ 185, 338, 344, 348, 349.

The learned attorneys for the defendants seem not to comprehend either the opinion in Noble v Beeman-Spaulding-Woodward Co., above, or the former opinion in the instant case. Noble could not recover an attorney's fee, because he had no contract of that kind with the makers and accommodation makers of the note. If Ashley and Rumelin had paid the note in the instant case under the authority of Noble v. Beeman-Spaulding-Woodward Co., they could not recover attorney's fees in an action against Rumelin, the maker, because they have no contract requiring him to...