First Nat. Bank of Arlington v. Cecil

• Decision Date: 05 October 1892
• Citation: 23 Or. 58,31 P. 61
• Parties: FIRST NAT. BANK OF ARLINGTON v. CECIL.
• Court: Oregon Supreme Court

31 P. 61

23 Or. 58

FIRST NAT. BANK OF ARLINGTON v. CECIL.

Supreme Court of Oregon

October 5, 1892

Appeal from circuit court, Gilliam county; W.L. BRADSHAW, Judge.

Action by the First National Bank of Arlington, Or., against N Cecil. Judgment for plaintiff. Defendant appeals. Affirmed.

Alfred S. Bennett, for appellant.

A.A Jayne and F.P. Mays, for respondent.

BEAN J.

This is an action to recover the sum of $3,092.70, and interest from November 20, 1890, upon a promissory note for that amount, dated December 20, 1889, and executed by defendant on September 12, 1890. A trial before a jury resulted in plaintiff's favor, from which defendant brings this appeal. On the trial, plaintiff gave evidence tending to show that on December 20, 1889, F. Cecil, T.A Rausier, and Sumner Reed, for a valuable consideration, made executed, and delivered to plaintiff their joint and several promissory note for $3,092.70, due 90 days after date, with interest at the rate of 10 per cent. per annum from date until paid. After this note became due, and while it was unpaid, F. Cecil, in order to escape the payment thereof, if possible, and to compel the bank to collect the note from his comaker, Sumner Reed, assigned, transferred, and conveyed all his property to his brother, the defendant in this action. Upon learning of this transfer, a representative of plaintiff sought an interview with defendant, and notified him that, inasmuch as he had the property of F. Cecil, the bank wanted him to sign the note it held against Cecil, Rausier, and Reed, at the same time informing him that, unless he did sign the note, it would institute proceedings to contest the conveyance from his brother to himself, as it knew there was no consideration for the conveyance, but it was made solely for the purpose of getting the property out of F. Cecil's hands. Whereupon the defendant agreed to, and did, on September 12, 1890, sign his name to the note, at the bottom thereof, and plaintiff refrained from bringing suit to set the conveyance aside. At the close of plaintiff's testimony, defendant moved for a nonsuit, which being overruled, the cause was submitted to the jury without any evidence whatever on the part of defendant. The contention of defendant on this appeal is that his signature to this note was void and of no effect--First, because there was no consideration for the same; and, second, by his placing his name on the note under the circumstances detailed he only became surety or guarantor for the other parties to the note, and his contract was a collateral one, within the statute of frauds, and void because it does not express the consideration.

1. Upon the first point the argument is that the arrangement between plaintiff and defendant did not amount to an agreement on plaintiff's part to forbear proceedings to contest the conveyance from F. Cecil to defendant. This question coming before us, as it does, on a motion for a nonsuit, we are only called upon to say whether the jury could fairly infer such an agreement from the evidence reported. By the evidence it does not appear that plaintiff, in so many words, agreed to forbear proceedings to contest the...