Pollock v. Lumbermen's Nat. Bank of Portland

• Decision Date: 13 November 1917
• Parties: POLLOCK v. LUMBERMEN'S NAT. BANK OF PORTLAND.
• Court: Oregon Supreme Court

168 P. 616

86 Or. 324

POLLOCK v. LUMBERMEN'S NAT. BANK OF PORTLAND.

Supreme Court of Oregon

November 13, 1917

Department 1.

Appeal from Circuit Court, Multnomah County; Geo. N. Davis, Judge.

Action by M. L. Pollock against the Lumbermen's National Bank of Portland. From a judgment of nonsuit, plaintiff appeals. Judgment affirmed.

The complaint in this action alleges substantially that the plaintiff, being ignorant of the limitations upon the powers of a national bank, applied to the defendant bank, through its agent, Dukeheart, as assistant cashier, to lend some of plaintiff's money for him; that Dukeheart represented to him that the bank was authorized to negotiate loans for its depositors; that through such assistant cashier the bank agreed to loan a sum of money for him and to obtain from the borrower a valid promissory note of a solvent maker secured by first-class, bankable collateral security; that thereafter Dukeheart informed him that such a loan had been negotiated and that the collateral security was ample; that he thereupon drew his check upon the Metropolitan Bank of New York City for the sum of $900 in favor of the defendant bank, and, upon defendants' representations regarding the sufficiency of the security, accepted a promissory note signed by J. W Matthes, and, as collateral, a deed to certain real estate in Portland, and an assignment of a contract of sale of certain other lands. These assertions are followed by an allegation:

"That said defendants wholly failed to keep and perform their said agreement, and did receive and pay out of said moneys of plaintiff and accept said note and the collateral purported to be described therein, well knowing that J. W. Matthes, the signer and maker of said note, was at the date of said note and now is, insolvent and financially irresponsible, and that said note was of no commercial value."

Then follow allegations regarding the worthlessness of the securities, the payment of interest charges upon the same the amount of the damages sought to be recovered, and the usual prayer for judgment.

After denying the material averments of the complaint, the answer of the bank alleges that plaintiff loaned his money to Matthes after a full and careful examination of the borrower's financial responsibility and of the value and validity of the securities; that defendant advanced the money on plaintiff's check, and at his request applied the money upon the loan to Matthes; and that at plaintiff's request and under his direction it paid from his account the interest charges on the collateral securities. It is further alleged that defendant as a national bank had no power to make or enter into such an agreement as that set out in the complaint. A reply having been filed, a trial was had wherein, after plaintiff introduced evidence and rested his case, a judgment of nonsuit was entered by the court, from which plaintiff appeals.

Wilson T. Hume, of Portland, for appellant. H. G. Platt of Portland (Platt & Platt and Palmer L. Fales, all of Portland, on the brief), for respondent.

BENSON J. (after stating the facts as above).

There are two assignments of error. The first is based upon the facts that the defendant bank filed an amended answer before trial, without first obtaining leave of the court, which amendment set up the defense that defendant, as a national bank, had no authority or power to enter into such an agreement as that set out in the complaint. Plaintiff moved to strike such amended answer from the files, for the reasons that it was filed without leave of the court and that it changed the ground of defense and the issues of the cause. The motion was denied, and an exception to the ruling presents the question here.

It will be noted that the amended answer does not set up a substituted, but an additional, defense. To permit such an amendment is within the discretion of the trial court, and its exercise of such discretion will not be interfered with, except in case of abuse, and there is no showing here to indicate that the court erred in permitting the amended answer to remain in the records as the defendant's final pleading. Talbot v. Garretson, 31 Or. 256, 49 P. 978.

It is also contended that the court erred in entering a judgment of nonsuit. It will be noted that the complaint alleges a contract whereby the bank was to act as broker for the purpose of lending plaintiff's money. A breach of such agreement is then asserted and there is a prayer for damages for such breach. It has been uniformly held that...