Hewitt v. Andrews

• Decision Date: 31 March 1914
• Parties: HEWITT v. ANDREWS ET AL.
• Court: Oregon Supreme Court

140 P. 437

69 Or. 581

HEWITT v. ANDREWS ET AL.

Supreme Court of Oregon

March 31, 1914

Department 1.

Appeal from Circuit Court, Multnomah County; Henry E. McGinn, Judge.

Action by L. P. Hewitt against Crayton S. Andrews and another. From a judgment for plaintiff, defendants appeal. Affirmed.

This is an action by L. P. Hewitt against Crayton S. Andrews and Lillie M. Andrews to recover on a promissory note executed by the defendants December 28, 1911, for $350 to W. H. Markell and alleged to have been assigned by him to the plaintiff. The answer admitted the execution of the note, but denied that it had been assigned. For further defenses it is averred, in substance, that on March 28, 1910, W. H. Markell sold an automobile to the defendant Crayton S. Andrews for $550, falsely representing that the machine was in good condition and capable of being run a long distance without repairs; that Andrews, relying upon such representations and ignorant of the true condition of the car, was induced to purchase it agreeing to pay the sum stated in six months. The defects in the vehicle are stated, and the sums of money expended in attempting to repair it are set forth, and it is alleged that the automobile was then worthless. For a further defense it is averred in effect that the note sued on was executed without consideration, in that it was given to evidence a part payment on the car. Another defense is that on March 28, 1910, in consideration of $1.80 Andrews purchased ten gallons of gasoline from Markell, who agreed to deliver it but had failed to do so or to repay that sum of money though demand therefor had been made. The reply denied the allegations of new matter in the answer, and, the cause having been tried without a jury, findings of fact and of law were made according to plaintiff's theory of the case and, a judgment having been rendered in accordance therewith the defendants appeal.

W. C Winslow, of Salem (A. W. Andrews and C.J. Crosby, both of Portland, on the brief), for appellants. L. P. Hewitt, of Portland, for respondent.

MOORE J. (after stating the facts as above).

No bill of exceptions was settled or allowed, but a transcript of all the testimony given at the trial has been brought up, an inspection of which discloses that no objection was made or exception taken to any action of the court now assigned as erroneous. It is insisted that no evidence was produced tending to show that plaintiff was the owner or holder of the note; that the testimony conclusively establishes the fact that the defendants were entitled to a credit of $1.80 for gasoline purchased from Markell; and that findings to the contrary are not based on any evidence. It is also asserted that the defendants were not permitted to introduce sufficient testimony to substantiate their defense.

The transcript shows that W. H. Markell, as a witness having identified the note sued upon, was asked, "Is that your signature on the back of it?" and replied: "Yes sir; I assigned it to the bank. I wanted to use the money you know. Q. What have you done with the note? A. I put it in the bank at that time." The court thereupon, addressing plaintiff's counsel, said: "I will hear what the other side has to say to this."

C. S Andrews, one of the defendants, referring to the note sued upon, testified that it was executed in renewal of an old note given six months prior for an automobile. The witness then described the condition of the machine, saying that he had expended $97.00 in trying to repair it. He was then asked, "What about this oil you speak of?" The question probably related to the gasoline mentioned in the answer, for no statements had been made by Andrews in his testimony as to any...