Fiore v. Ladd

• Citation: 29 Or. 528,46 P. 144
• Parties: FIORE v. LADD et al. [1]
• Decision Date: 21 September 1896
• Court: Supreme Court of Oregon

46 P. 144

29 Or. 528

FIORE v. LADD et al. ^[1]

Supreme Court of Oregon

September 21, 1896

Appeal from circuit court, Multnomah county; E.D. Shattuck, Judge.

Action by Saverio Fiore against W.M. Ladd and others. From a judgment in favor of plaintiff, defendants appeal. Modified and affirmed on condition.

Geo. H. Williams and S.B. Linthicum, for appellants.

E.B Watson, for respondent.

BEAN J.

This action was commenced on the 8th day of May, 1891 against W.S. Ladd and W.M. Ladd, bankers doing business as Ladd & Tilton, for the recovery of the sum of $800. The complaint avers, in substance, that on April 13, 1891 plaintiff deposited with defendants $800; that they thereupon issued to him a certificate of deposit therefor, payable in three months, on return of the certificate; that on the same day defendants wrongfully obtained possession of said certificate, and wrongfully paid and canceled the same; that plaintiff was the owner thereof at the time, and never indorsed it, or received payment therefor; that on April 20th he demanded of defendants the said sum of $800, but they refused, and still refuse, to pay or deliver the same, or any part thereof, and that there is due and owing to the plaintiff, from the defendants the sum of $800, with interest from the 20th of April, 1891, at 8 per cent. per annum, for which judgment is demanded. The answer denies the material allegations of the complaint, except the receipt of the money, and plaintiff's demand therefor, and sets up, as a further and separate defense, matter which goes to the merits, but which, for the purposes of this appeal, need not be stated here. The judgment now appealed from is the third rendered in this cause. The first was reversed on defendants' appeal, and a new trial ordered. 22 Or 202, 29 P. 435. The second was in favor of defendants. At the time of the entry of judgment on that trial the death of W.S. Ladd was suggested by the surviving defendant, and on his motion W.M. Ladd, Charles E. Ladd, and John Wesley Ladd were substituted as defendants in place of W.S. Ladd and W.M. Ladd, partners as Ladd & Tilton, and the action afterwards proceeded against them. Subsequently the plaintiff appealed, and, the judgment being reversed, a new trial was again ordered. 25 Or. 423, 36 P. 572. Upon such trial, in July, 1895, the jury rendered a verdict as follows, omitting title and signature: "We, the jury in the above action, find for plaintiff, and assess his damages in the sum of eight hundred ($800) dollars." The defendants filed a motion for a new trial, which, being overruled, they moved for judgment notwithstanding the verdict on the ground that the complaint does not state facts sufficient to constitute a cause of action. This motion was likewise overruled, and on motion of the plaintiff the verdict was amended so as to include interest from the 20th of April, 1891, and judgment rendered accordingly against W.M. Ladd, Charles E Ladd, and John W. Ladd, substituted as defendants in place of W.S. Ladd and William M. Ladd as Ladd & Tilton. From the judgment thus rendered this appeal is taken.

It is first contended that the court erred in overruling the defendants' motion for judgment notwithstanding the verdict, and in entering judgment in favor of plaintiff, for the reason that the complaint on its face shows that the action was commenced prior to the maturity of the certificate of deposit referred to and set out in the complaint. Although this cause has been three times tried before as many juries, and has been to this court twice before on appeal, the objection that it was prematurely brought was never raised or suggested in any way until after the verdict above referred to was rendered. It therefore, in our opinion, comes too late. The objection that an action is prematurely brought is mere matter of abatement, and should be taken by demurrer if it so appears upon the face of the complaint, otherwise by answer before pleading to the merits, or it is waived. 1 Enc.Pl. & Prac. 22, 32; Carter v. Turner, 2 Head, 52; Moore v. Sargent, 112 Ind. 484, 14 N.E. 466; Railway Co. v. Stevenson, 6 Ind.App. 207, 33 N.E. 254; Collette v. Weed, 68 Wis. 428, 32 N.W. 753.

It is next contended that the court erred in overruling defendants' motion to strike out the testimony of the witness Ferrara concerning a conversation he had with some person at the desk of the defendants' receiving teller about the deposit of the money in question, shortly after its payment to Antone, on the ground that the testimony was incompetent and immaterial, because the statements "were not shown to have been made by Bates," the person with whom the transaction was had. This is the only objection to the admission of such testimony made in the court below or presented to this court, and the only one considered. In our opinion, it is not well taken. The evidence shows that, after the money had been paid to Antone the witness went to the bank, at the request of plaintiff, to see about the matter that he had a talk with W.M. Ladd, one of defendants, who said he knew nothing about it, but referred witness to the receiving teller for the particulars; that he went to the receiving teller's window, and had the conversation in question with some person at the desk of that officer, who assumed to be the teller of the bank, and to know all about the transaction, and who related his version of it to the witness. Whether this person was the teller with whom the business...