Ogden City St. R. Co. v. Wright

• Decision Date: 31 July 1897
• Parties: OGDEN CITY ST. RY. CO. v. WRIGHT et al.
• Court: Oregon Supreme Court

49 P. 975

31 Or. 150

OGDEN CITY ST. RY. CO. v. WRIGHT et al.

Supreme Court of Oregon

July 31, 1897

Appeal from circuit court, Union county; Stephen A. Lowell, Judge.

Action by the Ogden City Street-Railway Company against W.T. Wright and another. From a judgment for defendants, plaintiff appeals. Reversed.

This is an action by plaintiff, a corporation, against W.T. Wright and F.L. Richmond in their individual capacity to recover on two promissory notes, one of which is as follows "$757.42. Portland, Oregon, May 30th, 1894. On or before 30th Nov., 1895, after date, without grace, for value received, I promise to pay Ogden City Street-Railway Company seven hundred and fifty-seven and 92/100 dollars and interest thereon from date at a rate of eight per cent. per annum from date until paid, all in U.S. gold coin; and I further agree to pay all taxes and assessments which may be levied or assessed to the holder of this note on account thereof, and in case suit or action instituted to collect this note, or any portion thereof, to pay such further sum as the court may adjudge reasonable as attorney's fees in said suit or action. F.L. Richmond, as trustee of F. Nodine. W.T. Wright as trustee of F. Nodine." The other note is identical in every particular with the foregoing, except that it evidences a promise to pay the sum of $380.36, and is payable to the Utah Loan & Trust Company. A demurrer to the complaint, on the ground that it did not state facts sufficient to constitute a cause of action, having been sustained, judgment was rendered dismissing the action, from which the plaintiff appeals.

J.D Slater, for appellant.

Geo. H. Chamberlain and T.H. Crawford, for respondents.

PER CURIAM.

The only question on this appeal is whether, upon the face of the notes, the defendants are personally liable. In the execution thereof they have designated themselves as trustees of F Nodine, and, as a trustee is one who holds the legal title to property under an agreement, express or implied, to apply it and the income arising therefrom to the use and benefit of another (1 Pars.Cont. 122; And.Law Dict. tit "Trustee"), it must be assumed, in the absence of the circumstances indicating a different relation, that they are simply the holders of the legal title to certain property in trust for Nodine. And upon this theory the sufficiency of the complaint must be determined. Now, the law is well settled, as stated by Mr. Parsons, that such a trustee "is bound personally by the contracts he makes as trustee, although designating himself as such; and nothing will discharge him but an express provision showing clearly that both parties agreed to act upon the responsibility of the funds...