Martin v. Moreland

• Decision Date: 20 May 1919
• Citation: 93 Or. 61,180 P. 933
• Parties: MARTIN v. MORELAND ET AL. [a1]
• Court: Oregon Supreme Court

180 P. 933

93 Or. 61

MARTIN v. Supreme Court of Oregon

May 20, 1919

Department 1.

Appeal from Circuit Court, Multnomah County; E. V. Littlefield Judge.

Action by F. J. Martin against T. Moreland, D. S. Painter, and W. E Schmidt. From a judgment for plaintiff, defendant Painter appeals. Reversed, and case remanded for further proceedings.

See also, 174 P. 722.

This is an action for damages. The complaint alleges that plaintiff was the owner of an interest in certain furniture in a rooming house, of a value exceeding $252, and defendant Moreland, being desirous of purchasing the same, offered therefor $100 in cash, and a note for $150, secured by a mortgage upon a lot in North Pacific addition to the city of Astoria. It is averred that Moreland represented to plaintiff that the note and mortgage were worth the face value, and that "said note and mortgage were gilt edge and first class in every respect and well secured." The usual allegations follow in regard to plaintiff's reliance upon these representations, and the consequent sale and delivery of the furniture, with acceptance of the note and mortgage in part payment therefor. These recitals are followed by averments to the effect that the representations as to the value of the note and mortgage were false and fraudulent "in that the purported note and mortgage was not 'gilt edge' and was not well secured; that the property described in said purported mortgage is worthless and valueless, and is assessed for the sum of $1, and said defendant Moreland knew at the time he made said representations and statements that the property described in said purported mortgage was worthless and valueless."

There are further recitals charging a conspiracy upon the part of the several defendants to create a pretended security by the execution of the mortgage without any actual consideration upon worthless land, for the purpose of defrauding plaintiff who asks for judgment in the sum of $150, with interest. The defendant Painter demurred to the complaint, which demurrer being overruled, he answered, denying the material allegations of the complaint, and pleading affirmatively the genuine character of the mortgage, and asserting its bona fides. A trial was had upon the issues thus joined, at the beginning of which the defendant Painter objected to the admission of any evidence for plaintiff upon the ground that the complaint does not state facts sufficient to constitute a cause of action. The...