Everding & Farrell v. Toft

• Decision Date: 27 July 1915
• Citation: 82 Or. 1,150 P. 757
• Parties: EVERDING & FARRELL v. TOFT ET AL.
• Court: Oregon Supreme Court

150 P. 757

82 Or. 1

EVERDING & FARRELL v. TOFT ET AL.

Supreme Court of Oregon

July 27, 1915

Appeal from Circuit Court, Multnomah County; C. U. Gantenbein Judge.

Action by Everding & Farrell, a corporation, against John F. Toft and others. There was a judgment for plaintiff against defendant Toft, and in favor of defendant J. L. Hoffman. From that part of the judgment in favor of defendant Hoffman plaintiff appeals. On motion to dismiss. Motion denied.

Reed & Bell, of Portland, for appellant. A. E. Clark and M. H. Clark, both of Portland, for respondent.

MOORE C.J.

This is a motion to dismiss an appeal. In order to understand the question involved, it is necessary to state the substance of the facts upon which a solution of the inquiry depends:

The defendant J. L. Hoffman on August 7, 1912, executed to the defendant the Colombian Timber Company, a corporation, his promissory note for $5,000, payable in one year, with interest at the rate of 8 per cent. per annum. Prior to the maturity of the instrument the defendants John F. Toft, John F. Shorey, and the payee in due course indorsed the note for value, and thereupon the plaintiff Everding &amp Farrell, a corporation, became the owner thereof and instituted an action to recover the amount due thereon; the complaint being in the usual form. Toft, separately answering, denied some of the averments of the initiatory pleading, and for a further defense alleged that he was induced to indorse the note by the fraudulent representations of an agent of the payee, setting forth the statements asserted to be false; that before the plaintiff obtained title to the instrument one of its officers, naming him, was informed by Toft that there was something wrong about the making and indorsing of the note, and advised not to purchase it expecting this defendant to pay the same. The statements of new matter in this answer were denied in the reply.

The defendant Hoffman, separately answering, admitted most of the averments of the complaint, and further alleged that he was induced to execute the note to evidence the purchase of 5,000 shares of the capital stock of the defendant corporation which its agent fraudulently represented was valuable, but in fact was valueless, and that prior to plaintiff's purchase of the written promise its officer was informed of the invalidity thereof, by reason of false statements, setting them out. A reply put in issue the averments of new matter in this answer.

The defendants the Colombian Timber Company and John F. Shorey did not appear or answer. The cause being tried on the issues joined, the plaintiff secured a judgment against Toft for the amount of the note, while the defendant Hoffman obtained a judgment against the plaintiff for his costs and disbursements. The plaintiff's attorneys served upon the defendants Toft and Hoffman a notice of appeal,...