LaTourette v. Meldrum

• Decision Date: 11 June 1907
• Citation: 90 P. 503,49 Or. 397
• Parties: LATOURETTE v. MELDRUM et al.
• Court: Oregon Supreme Court

90 P. 503

49 Or. 397

LATOURETTE v. MELDRUM et al.

Supreme Court of Oregon

June 11, 1907

Appeal from Circuit Court, Clackamas County; T.A. McBride, Judge.

Action by A.E. Latourette, trustee, against Henry Meldrum, H.H Johnson, Thomas Charman, and J.T. Apperson. From a judgment for defendants Charman and Apperson and against defendants Johnson and Meldrum, plaintiff and defendants Johnson and Meldrum appeal. Reversed, and new trial granted.

This is an action by A.E. Latourette, "trustee," against H.H. Johnson, Henry Meldrum, Thomas Charman, and J.T Apperson to recover the amount of a promissory note executed by the defendants to the plaintiff November 29, 1896, for the sum of $2,707, payable in six months, with interest from date until paid at the rate of 10 per cent. per annum. The complaint is in the usual form, and from a copy of the note set out therein it appears that the defendants agreed to pay a reasonable sum as attorney's fees in case action should be instituted to collect the note or any part thereof, and that Charman and Apperson severally appended, after their signatures, the word "Security." Johnson and Meldrum, jointly answering, denied the material allegations of the complaint, and for a further defense stated that the defendants executed the note mentioned, and at the time it was given it was agreed by the parties thereto that in all matters relating to the payment thereof C.D. and D.C Latourette were and should continue to be plaintiff's agents, and that the note should be taken in her name to enable them to receive from the defendants a bonus and commissions for making and caring for the loan in addition to the highest rate of interest allowed by law, and that the money furnished was at all times the property of the agents that it was further agreed by the parties that, as between themselves, Johnson and Meldrum were principals as to two-thirds and one-third, respectively, of the sum stated in the note, and that Charman and Apperson were only sureties thereon, which the plaintiff and her agents at all times well knew; that on or about June 30, 1897, and after the note had matured, Johnson and Meldrum, desiring to secure an extension of time for the payment thereof, entered into an agreement with plaintiff's agents whereby Johnson and one Harold A. Rands assigned to such agents for their principal the right to collect from the United States a sum of money to be paid the assignors for surveying public lands in Idaho, pursuant to a contract therefor, entered into May 6, 1897, upon which there subsequently became due $6,981.36; that such transfer was made June 30, 1897, without the knowledge or consent of Charman or Apperson, and evidenced by an irrevocable power of attorney, in which it is stated that the written authorization to act for the persons giving it was made in consideration of money borrowed from the attorneys in fact, which is the sum loaned to the defendants and for which the note was given; that at the time the transfer was made the entire beneficial interest in the contract and the proceeds accruing therefrom belonged to Johnson, as was then well known to the plaintiff and her agents, who agreed with him and Meldrum that the sum to be collected for making the survey should be received and applied in full satisfaction of the note sued on, the time for the payment of which was extended in consideration of the execution of the power of attorney and of the assignment of the contract; that, pursuant to the transfer, the plaintiff and her agents collected from the United States $6,981.36, which was in excess of the amount of the note described in the complaint, but, notwithstanding their agreement to apply the money so received on that obligation, they appropriated the whole thereof to other notes made by Johnson, to which the codefendants herein were not parties, without his or their knowledge or consent, and that by reason thereof the note sued on has been fully paid. Charman and Apperson, jointly answering, pleaded for their first defense substantially the same facts as are alleged by Johnson and Meldrum. For a second defense they repeated several averments of their preceding answer, and alleged that on or about June 30, 1897, and after the note sued on had matured, the plaintiff, for a valuable consideration to her paid by Johnson, and without the knowledge or consent of Charman or Apperson, entered into an agreement with him whereby she extended the time of the payment of the note mentioned until her agents could collect from the United States the money due for making the survey, which sum they were to receive in payment of the note in question. For a third defense, the prior averments referred to are repeated, and it is alleged that, when the note sued on matured, Johnson and Meldrum were severally solvent, as the plaintiff then well knew; that after the note became due these defendants, without any knowledge or notice that the time for the payment thereof had been extended, requested the plaintiff's agents to collect the sum due thereon from the principals, but they refused to comply therewith, and represented that they had accepted from Johnson an assignment of the surveying contract, and that the money to become due thereon was in excess of the amount of the note, upon which representations Charman and Apperson relied and were prevented from taking any action against the principals until they had severally become insolvent; that, pursuant to the assignment of the surveying contract, the plaintiff received from the United States a sum of money largely in excess of the amount of such note, and that by reason of the representations referred to the plaintiff is, and of right ought to be, estopped to claim that the note or any part thereof is due or payable. The allegations of new matter in the several answers were denied in the replies, and, when the cause was tried, the jury found in favor of Charman and Apperson, but against Johnson and Meldrum, for the amount of the note and attorney's fees, and from the judgment rendered on the verdict the plaintiff appeals from that part which exempts Charman and Apperson from liability, and Johnson and Meldrum also appeal from that part which awards any sum against them.

Wm. D. Fenton and H.E. Cross, for appellant.

W.W. Cotton, for respondent A.E. Latourette.

PER CURIAM.

The bill of exceptions narrates that the defendant Johnson and one Harold A. Rands entered into a contract with the United States whereby they were to survey public lands in Idaho and, desiring to secure money to enable them to comply with the terms of their agreement, they on June 30, 1897, executed to C.D. and D.C. Latourette an irrevocable power of attorney in which it is stated that the instrument was given for money...