Nickell v. Bradshaw

• Decision Date: 29 July 1919
• Citation: 183 P. 12,94 Or. 580
• Parties: NICKELL v. BRADSHAW ET AL.
• Court: Oregon Supreme Court

183 P. 12

94 Or. 580

NICKELL v. BRADSHAW ET AL.

Supreme Court of Oregon

July 29, 1919

Department 1.

Appeal from Circuit Court, Jackson County; F. M. Calkins, Judge.

Action by Belle Nickell against R. H. Bradshaw and Effie May Terrill. From an involuntary judgment of nonsuit against the last-named defendant, the plaintiff appeals. Affirmed.

Belle Nickell brought this action against R. H. Bradshaw, as the maker, and against Effie May Terrill, as an indorser, of a promissory note. Bradshaw made no appearance, and there was a judgment against him for the amount of the note; but as between Belle Nickell and Effie May Terrill there was an involuntary judgment of nonsuit against Belle Nickell. The plaintiff appealed.

On August 9, 1910, R. H. Bradshaw delivered to Effie May Terrill his promissory note which reads as follows:

"$2,000.

Medford Oregon, Aug. 9th, 1910.

"Five years from date without grace, I promise to pay to the order of Effie May Terrill for value received, with interest from date, payable annually at the rate of 6 per cent. per annum until paid, principal and interest payable in U.S. gold coin at Farmers' & Fruit Growers' Bank of Medford, Oregon and in case suit or action is instituted to collect this note or any portion thereof, I promise to pay such additional sum of money as the court may adjudge reasonable as attorney's fees in such suit or action.

"R H. Bradshaw.

"Due if ranch is sold or mortgaged."

Charles Nickell is the husband of Belle Nickell, and Charles E. Terrill is the husband of Effie May Terrill. On March 26, 1912, Belle Nickell traded 160 acres of land, owned by her, for the note held by Effie May Terrill. The land was valued at $1,600, and Belle Nickell and her husband executed and delivered to Effie May Terrill a note "for $400 for the difference." This note signed by the Nickells was afterwards paid by them. All the negotiations for the "trade" were conducted by Charles Nickell as the agent of Belle Nickell and by Charles E. Terrill as the agent of his wife. The inference to be drawn from the record is that all the negotiations for the "trade" as well as the consummation of it were carried on in Medford. Effie May Terrill resided in Brownsboro, Jackson county, and was not present during any of the negotiations nor at the close of the transaction. When the Bradshaw note was delivered to Charles Nickell, as the agent of his wife, there was an indorsement on the back of the paper showing the payment of interest to August 9, 1911, and immediately beneath that writing the name "Effie May Terrill' was written. The undisputed evidence is that Effie May Terrill placed the note in her lock box in a Medford bank and that it remained there until it was delivered to Charles Nickell. The uncontradicted testimony of Effie May Terrill is that, although the name upon the back of the note was her genuine signature, she had written her name on the note some time before the negotiations for the "trade."

On July 24, 1915, Charles Nickell and his wife were in Berkeley, Cal., and on that date the former, writing from Berkeley, addressed a letter to Charles E. Terrill, inquiring as to the whereabouts of Bradshaw and saying that "his note will soon be due." Nickell returned to Medford shortly after writing to Terrill and did not receive an answer from Terrill until after he had returned to Medford. Not knowing the whereabouts of Bradshaw, about ten days or two weeks before August 9, 1915, and while still in Berkeley, Nickell wrote two letters to Bradshaw, addressing one to him at Medford and the other to him at Brownsboro, telling him that "the note would become due on a certain date and to go and pay it." Charles Nickell testified that he did not present the note to Bradshaw personally, but that "I just left it at the bank where he should pay it and told him about it being there." Charles Nickell stated on direct examination that the note "has been in mine and my wife's" possession since it was received from Charles E. Terrill; and upon being recalled the witness was asked by counsel for plaintiff whether he made demand upon Bradshaw for payment the next day after the note became due; and he answered thus:

"Yes, the next day. This note was at the bank (Farmers' & Fruit Growers' Bank) there all of the time, and it was only withdrawn some time afterwards from the bank, and in fact he was notified to appear at the bank and pay it."

Charles Nickell was further asked: "You say this note was at the Farmers' & Fruit Growers' Bank up to the time it became due?" and he answered, "Yes."

On August 10, 1915, Charles Nickell wrote, and Belle Nickell signed, a letter addressed to Effie May Terrill at Brownsboro, as follows:

"You are hereby notified that the note drawn in your favor by R. H. Bradshaw under date of August 9, 1910, for $2,000.00, payable at the Farmers' & Fruit Growers' Bank at Medford, Oregon, five years after date, with interest at 6 per cent. per annum, and subsequently indorsed by you and sold and transferred to me by you before maturity for a valuable consideration, was dishonored and not paid by said R. H. Bradshaw, the maker, at maturity, after due presentation.

"I now make demand upon you that you pay said note and accrued interest at the Farmers' & Fruit Growers' Bank at Medford, Oregon, at once.

Belle Nickell.

"Dated this 10th day of August, 1915."

This letter was deposited in the post office in Medford and was received by Effie May Terrill at Brownsboro.

The complaint alleges that R. H. Bradshaw gave his promissory note to Effie May Terrill on August 9, 1910, and that afterwards, before the maturity of the note, the latter indorsed it to the plaintiff; that "at the maturity thereof" the note was "duly presented to the said defendant, R. H. Bradshaw, the maker thereof, for payment and payment thereof demanded; but the same was not paid nor was any portion thereof, of all which due notice was given to the said defendant, Effie May Terrill, the said indorser thereof, and payment thereof demanded of the said defendant, Effie May Terrill, the said indorser." The complaint sets out a purported copy of the note sued upon; but a comparison of the complaint with the promissory note executed by Bradshaw discloses that the recitals in the complaint agree with the original note, except that the complaint omits the words, "Due if ranch is sold or mortgaged."

Effie May Terrill denied all the allegations of the complaint except as "specifically alleged" in the answer. In passing it is proper to add that the denials were based, in part, on the theory that the complaint recited a note different from the one which the respondent had transferred to the plaintiff. The answer recites the execution and delivery of the note from Bradshaw to Effie May Terrill, and this pleading contains an accurate copy of the whole note. The answer also contains two separate defenses. In the first separate defense it is stated, in substance, that the Bradshaw note was delivered to and accepted by the plaintiff upon an agreement by her--

"To look entirely to the defendant Bradshaw for the payment of the same, without any claim upon this defendant for liability for any portion of said note, principal or interest, or attorney's fees. * * * That in said transaction plaintiff accepted said note as the obligation of the defendant Bradshaw only, relieving this defendant from any liability thereon in the event of nonpayment, and without any other understanding, legal, implied or otherwise, that this defendant would become the guarantor or indorser thereof."

In the second separate defense it is recited that, when Bradshaw gave the note to Effie May Terrill, he was the owner of a ranch in Jackson county, "of large acreage and of great value, and so long as said ranch remained the property of the said Bradshaw and was not too largely mortgaged or incumbered said note was easily collectible out of said ranch; that for said reason it was stipulated as a part of said transaction that if said ranch should be sold or mortgaged said note should mature, so that this defendant might protect herself in the collection of said note."

Effie May Terrill further alleged that, at the time of the transfer of the note to Belle Nickell, the Bradshaw ranch was mortgaged, but that the "incumbrance was small as compared with the value of said ranch and had been put on by the consent of this defendant, as this defendant advised plaintiff at the time of the sale of said note."

The second separate defense concludes with the following paragraph:

"That thereafter on or about the 18th day of January, 1913, the defendant Bradshaw sold said ranch to Frederick T. Lewis, of which fact the plaintiff had knowledge, and on or about the time of said transaction and for more than one year prior to any notice of nonpayment to this defendant and for more than one year prior to any demand upon this defendant for the payment of said note or any part thereof. By the terms of said note and by reason of said transaction the said note * * * became due and owing more than one year prior to any notice of nonpayment or demand for payment by plaintiff on defendant."

The reply opens by explaining that the words, "due if ranch is sold or mortgaged," were inadvertently omitted from the complaint. The reply denies that the Bradshaw note was transferred to the plaintiff upon an agreement by her to look to Bradshaw only for payment of the note; and this denial is followed by an affirmative allegation that it was agreed that--

"The plaintiff should not look entirely to the said defendant R. H. Bradshaw for the payment of the said note, * * * but that the said defendant Effie May Terrill should indorse the last described note unrestrictedly."

The...