Farmers' & Fruit-Growers' Bank v. Davis

• Decision Date: 14 October 1919
• Citation: 93 Or. 655,184 P. 275
• Court: Oregon Supreme Court
• Parties: FARMERS' & FRUIT-GROWERS' BANK v. DAVIS.

184 P. 275

93 Or. 655

FARMERS' & FRUIT-GROWERS' BANK v. DAVIS.

Supreme Court of Oregon

October 14, 1919

Department 2.

Appeal from Circuit Court, Jackson County; F. M. Calkins, Judge.

Action by the Farmers' & Fruit-Growers' Bank against F. Roy Davis. From judgment for defendant, plaintiff appeals. Reversed and rendered.

Porter J. Neff, of Medford, for appellant.

W. E Crews, of Medford, for respondent.

BEAN J.

This is an action for the possession of one bond of the Medford Printing Company of the par value of $100. There are seven other like bonds in the same condition. The complaint is in the usual form alleging ownership and right of possession. The answer denies the same. The cause was tried by the court without the intervention of a jury. Findings of fact were made and a judgment passed in favor of defendant from which judgment plaintiff appeals.

The facts out of which the case arose are substantially as follows: On May 4, 1910, J. F. Reddy and John R. Allen gave the plaintiff their promissory note for $3,487. Thereafter plaintiff commenced an action on the note and attached certain property belonging to Allen and Reddy. In order to obtain the release of the attachment and a dismissal of the suit, J. F. Reddy and Mary F. Reddy gave to plaintiff their note for $3,662.75, being the amount of the Allen-Reddy note and interest and costs of the action. This note was held as collateral for the original Allen-Reddy note. Payments were made and credited upon it from time to time, and it was renewed at different times. In the meantime John R. Allen had made an assignment of his property to certain trustees for the benefit of his creditors. Among the property so assigned were certain bonds in the Medford Printing Company, of which those in controversy were a part. On December 12, 1911, the trustees of John R. Allen, being unable to sell these bonds advantageously, distributed the bonds among the creditors as a dividend on the basis of their value being 90 per cent. of par. Plaintiff as its dividend on the Allen-Reddy note received $800 par value of these bonds, 90 per cent. of which is $720, and $26.43 in money to equalize its dividend. Plaintiff credited the cash payment on the collateral note of Reddy and wife, but held the bonds claiming the same to be collateral security without crediting the value of the bonds. In September, 1914, plaintiff commenced an action against Reddy and wife on the last renewal of their collateral note for $3,338.66, dated April 24, 1914, with interest at 8 per cent. per annum from date, asserting no part thereof had been paid except $24, paid July 7, 1914. Plaintiff claimed $350 as reasonable attorney's fees in the action. There was no controversy in regard to the amount of the attorney's fees. The Reddys answered in that action setting up two defenses, the only one here material being that the original Allen-Reddy note had been paid. A trial was held upon the issues in the circuit court. A complete transcript of the proceedings of that trial is attached to the bill of exceptions. Upon the issue of the payment of the original Allen-Reddy note, the defendants Reddy and wife claimed and introduced testimony tending to show that the receipt by plaintiff in that case, and the plaintiff here, of the $800 par value of the Medford Printing Company bonds, was a payment on the Allen-Reddy note at the agreed value of $720. Plaintiff opposed the allowance of this credit, claiming that the bonds were held as collateral to the notes and not as payment thereon. The issue thus raised was submitted by the court to the jury in the following language:

"Now the evidence that was offered tends to show that a certain amount was received in money on the indebtedness and a certain amount in bonds of the Tribune Printing Company. I say, that there was on the indebtedness; I will withdraw that and say that the evidence tends to show that a certain amount of money was paid and a certain amount of bonds were given as a result of this trust agreement--that is the dividend that was coming to the plaintiff on this trust agreement. The defendant contends that both the money that was paid and the value of the Tribune bonds should be indorsed on this note as payment or on this indebtedness as payment. The plaintiff, on the other hand, contends that the understanding was that the money received should be indorsed on the indebtedness, but that the Tribune bonds that were received should be held and any moneys received from them should be indorsed on the indebtedness and whenever the note was paid in full, that is, the note that is sued upon here is paid in full, that if the bonds had not been paid that they should be turned back to Dr. Reddy.

"There is a direct issue on that question, and it will be for you to decide whether or not the value of the bonds should be indorsed on the indebtedness or should be disregarded by you. If the plaintiff's contention is true that they simply hold the bonds as collateral for the notes and that the bonds had not been sold or reduced to cash, they should not be indorsed on the note. If the defendant's contention is true that the bonds were accepted as cash payment, then of course that amount should be deducted from the amount due on the note."

No other evidence was offered by the defendants Reddy tending to show any other payment ever having been made upon the notes which had not been credited. The jury returned the verdict for $3,210.17, including interest and attorney's fees, for which judgment was entered on February 29, 1916. Upon the trial of the present case, the plaintiff offered in evidence the record in the former action on the note in the case of Farmers' & Fruit-Growers' Bank v. J. F. Reddy and Mary F. Reddy, for the purpose of showing that the verdict and the judgment established the fact as between plaintiff and the Reddys that the bonds were received by the bank as absolute payment on the Allen-Reddy note and on the collateral note of Reddy and wife, and that credit was given therefor by the verdict of the jury, and judgment rendered thereon.

After the rendition of the judgment in the action on the note and for the purpose of inducing the defendants to pay the judgment, plaintiff entered into a stipulation with the Reddys in the following language:

"It is hereby agreed between Mary F. Reddy and J. F. Reddy, parties of the first part, and Farmers' & Fruit-Growers' Bank, parties of the second part:

"That the judgment held by the Farmers' & Fruit-Growers' Bank against the Reddys shall be paid.

"(2) That the bonds of the Medford Printing Company in the amount of eight hundred dollars shall be delivered by the bank to F. Roy Davis, and that thereupon the Farmers' & Fruit-Growers' Bank shall commence an action in replevin for the said bonds against said Davis; that in said replevin action said Davis shall have the right to set up as defense any right or claim which the Reddys have to the bonds and employ W. E. Crews to defend the case without cost to F. Roy Davis.

"It is the intention that in said replevin action the respective rights of the Farmers' & Fruit-Growers' Bank and the said Reddy shall be determined, the Farmers' & Fruit-Growers' Bank assuming the burden of the plaintiff and that the transfer of the bonds to said Davis and the payment of the judgment by said Reddy shall in no manner affect the rights of either party to said bonds.

"It is further agreed that this agreement shall in no way legally affect the replevin action on trial or the manner of its appeal."

Pursuant to this stipulation, the bonds were turned over to the defendant Davis by plaintiff. Formal demand for their return was made and refused, and this action was commenced. Some preliminary questions are submitted in a rather irregular way. They should properly have been presented before the time of the argument upon the merits.

Rule 23 of this court (173 P. x), of date September 2, 1918, provides, among other things, that--

"All motions must be filed within ten days after a party or his attorney obtains knowledge of an alleged failure of the adverse party or his attorney to comply with the requirements of the statute or with the rules of this court, and unless so filed all defects, except objections to the jurisdiction of the court, will be taken as waived by the moving party."

In the brief of respondent, it is urged that the notice of appeal is insufficient to confer jurisdiction for the reason it does not sufficiently describe the judgment appealed from or the court appealed to. The notice of appeal specifies the court in which the judgment was rendered, gives the name of the parties to the action, notifies the defendant and his attorney that the plaintiff "appeals to the Supreme Court from the judgment in the above-entitled action in favor of defendant and against plaintiff, entered in the above-named court on November 17, 1917, and from the whole of said judgment."

Subdivision 1 of section 550, L. O. L., provides that--

"Such notice shall be sufficient if it contains the title of the cause, the names of the parties, and notifies the adverse party or his attorney that an appeal is taken to the supreme or circuit court, as the case may be, from the judgment, order, or decree, or some specified part thereof."

It was held in Fraley v. Hoban, 69 Or. 180, 133 P. 1190 137 P. 751, that a notice of appeal which correctly specifies the court in which the judgment was rendered, gives the names of the parties to the action, the date of the judgment, and informs the adverse party that an appeal from the judgment has been taken, is sufficient without any other description. And in Holton v. Holton, 64 Or. 290, 129 P. 532, 46 L. R. A. (N. S.) 779, it was held that a notice of appeal which does not...