Patterson v. Patterson

• Decision Date: 10 February 1902
• Citation: 67 P. 664,40 Or. 560
• Parties: PATTERSON v. PATTERSON et al.
• Court: Oregon Supreme Court

67 P. 664

40 Or. 560

PATTERSON v. PATTERSON et al.

Supreme Court of Oregon

February 10, 1902

Appeal from circuit court, Marion county; Geo. H. Burnett, Judge.

Action by Harriet Patterson against John Patterson and M.L Chamberlin. From a judgment in favor of defendants entered on the pleadings after a verdict for plaintiff, plaintiff appeals. Reversed.

This is an action to recover on a promissory note executed by the defendants, John Patterson and M.L. Chamberlin, to the Capital National Bank of Salem, Or., June 30, 1892, for the sum of $239.20, payable on demand, with interest at the rate of 10 per cent. per annum, and alleged to have been assigned by said bank to plaintiff, who claims to be the owner and holder thereof, and that no part of the same has been paid except certain specified sums. The answer denies the material allegations of the complaint, and, for a separate defense avers that the remainder due on said note was paid to the bank March 4, 1893. For a further defense, it is alleged that Chamberlin signed said note as surety only; that the defendant Patterson induced the plaintiff, who is his wife to take up and pay off the note in question; that she well knew said note was given for her husband's debt; and that Chamberlin was only an accommodation maker. The answer contains other defenses, a statement of which is not necessary to the decision. The reply denies the allegations of new matter in the answer, and contains the following concession: "But plaintiff admits and avers that she did on said 4th day of March, 1893, purchase said note, and pay the balance due thereon to the said Capital National Bank with her own funds, and took an assignment of the same." At the trial of the issues thus joined the jury found for plaintiff in the sum of $257.15, whereupon defendants' counsel moved the court for judgment on the pleadings, on the ground that plaintiff had admitted therein that said note had been fully paid by her to said bank, which motion having been sustained, the action was dismissed, and plaintiff appeals.

Bonham & Martin, for appellant.

W.H. Holmes, for respondents.

MOORE, J. (after stating the facts).

The question to be considered is whether the admission in the reply that plaintiff purchased the note and paid the remainder due thereon overcomes the allegation of the assignment of the instrument as stated in the complaint and reply, thereby defeating the right of action. It is argued by plaintiff's counsel that, the allegations of the reply not having been assailed by motion or challenged by demurrer, the verdict aided any defective statement in their pleadings, and, this being so, the court erred in setting aside the verdict and dismissing the action. Defendants' counsel insist, however, that the pleadings should be construed most strongly against the pleader, and the plaintiff having admitted in the reply that she paid the note, the averment shows that the instrument was thereby discharged, and hence no error was committed as alleged.

The statute provides that in the construction of a pleading, for the purpose of determining its effect, its allegations shall be liberally construed, with a view of substantial justice between the parties. Hill's Ann.Laws Or. § 84. In Stewart v. Balderston, 10 Kan. 131, under a similar statute (Comp.Laws Kan.1879, p. 617, § 115), Mr. Justice Valentine, speaking for the court, in construing the allegations of a pleading, says: "But when the proper motions have been made to require the adverse party to so amend his defective pleading as to make it definite, certain correct, and formal, thereby giving the adverse party notice wherein his pleading is defective, informal, or insufficient and where the adverse party then refuses to amend his defective pleading, resists the motions to have it amended, and has the motions overruled by the court, the most rigid rule of the common law should prevail. No statement of fact in the pleading which the motions reached should then be taken as true, unless well pleaded; and, if any such statement would bear different constructions, the party demurring should be allowed to adopt any one of such constructions which he should choose. The old rule of the common law that 'everything should be taken the more strongly against the party pleading,' although it can seldom have application under our code practice, should then prevail. After a party has received full notice that his pleading is defective in some particular, and has been asked to correct it, it is his fault if it still remains defective in such particular; and he is the one who should suffer on account of such defective pleading, and not the other party." It has been held in this state that when the sufficiency of a pleading is challenged by motion or demurrer, and the action of the court in passing upon the objection thus interposed is not waived by answering over, the allegations of the complaint, answer, or reply thus assailed are to be construed most strictly against the pleader. Pursel v. Deal, 16 Or. 295, 18 P. 461; Kohn v. Hinshaw, 17 Or. 308, 20 P. 629. A different conclusion, however, seems to have been reached in Jackson v. Jackson, 17 Or. 110, 19 P. 847. Whatever the rule may be in respect to the interpretation of a pleading when assailed by motion or demurrer, and the action of the court in deciding the issue of law thus involved has...