Lazelle v. Miller

• Decision Date: 20 January 1902
• Parties: LAZELLE et al. v. MILLER et al. [1]
• Court: Oregon Supreme Court

67 P. 307

40 Or. 549

LAZELLE et al. v. MILLER et al. ^[1]

Supreme Court of Oregon

January 20, 1902

Appeal from circuit court, Clackamas county; Thos. A. McBride Judge.

Action on a note by Mary A. Lazelle and another against G.R.H Miller and another. From a judgment in favor of the plaintiffs, defendant Miller appeals. Reversed.

This is an action upon a promissory note for $300, of date April 2 1889, executed by G.R.H. Miller and J.G. Pilsbury, and payable to J.K. Bingham one year after date. The complaint is in the usual form, alleging the execution of the note certain payments thereon, the death of the payee, the admission of his will to probate, the title of plaintiffs to the note, and that there is due and unpaid thereon $267.50, with interest from October 2, 1895. Miller alone answered, and, after some admissions and denials, alleges affirmatively that at the time of the execution of the note he borrowed of the payee $74 and his co-maker $226, and that they signed the note severally for the amount each received and as surety each for the other, which relationship was known to the payee at the time; that thereafter, on February 2, 1891, he (Miller) fully paid the amount he originally borrowed, with accrued interest, and the same was accepted in full satisfaction by the payee, who thereafter, and without his knowledge or consent, received from the other maker two payments of interest in advance, by reason whereof Miller was discharged from liability. The reply put in issue the new matter alleged in the answer. Upon the trial the plaintiffs gave in evidence the note described in the complaint, with the indorsements thereon, and rested. The two makers of the note were thereupon called by the defendant, and testified, in effect, that at the time of its execution they were partners as carpenters and builders, and jointly borrowed the money, for the purpose, as the payee knew at the time, of paying and discharging the partnership debts; that thereafter, and in February, 1891, upon a dissolution of their partnership and settlement of accounts between them, it was ascertained that of the note in suit Miller owed and should pay $87.50 and Pilsbury the balance; that they called upon the payee of the note, and advised him of the settlement and agreement, and he thereupon received from Miller and credited upon the note the $87.50, with the understanding that Miller should be released from any further liability thereon; that thereafter the payee, without Miller's knowledge, on August 26, 1891, received and accepted from Pilsbury $24, interest to October 2, 1891, and on September 15, 1894 $26.75, interest to October 2, 1894. Objection was made to the introduction of testimony showing the relationship between the makers of the note, their settlement, and the payment by Miller, on the ground that it was a variance from the allegations of the answer. At the time the objection was made Miller asked leave to amend his answer to conform to the proof, but the court reserved its decision until the testimony was all in, when, upon motion of the plaintiffs, it directed a verdict in their favor, without, so far as the record discloses, passing on the motion for leave to amend.

C.D. & D.C. Latourette, for appellant.

J.E. Hedges, for respondents.

BEAN C.J. (after stating the facts).

It is contended in support of the judgment that the defendant cannot show by parol that he and Pilsbury each borrowed a certain part of the amount mentioned in their joint note, because such a showing contradicts and varies a written contract; that there was a fatal variance between the oral testimony offered and admitted and the allegations of the answer; and that the testimony does not support, or tend to support, the defense pleaded. These objections, we think, can and should be disposed of on the ground that, although there was no formal order allowing defendant to amend his answer to conform to the proofs, the testimony was admitted, and the case decided by the trial court as if it had been so amended. The motion by the plaintiffs for an order directing the jury to return a verdict in their favor seems to have been allowed on the assumption that the facts, if properly pleaded, would constitute no defense to the action, because they do not show that the...