Powder Valley State Bank v. Hudelson

• Decision Date: 01 December 1914
• Citation: 74 Or. 191,144 P. 494
• Parties: POWDER VALLEY STATE BANK v. HUDELSON ET AL.
• Court: Oregon Supreme Court

144 P. 494

74 Or. 191

POWDER VALLEY STATE BANK v. HUDELSON ET AL.

Supreme Court of Oregon

December 1, 1914

In Banc.

Appeal from Circuit Court, Union County; J. W. Knowles, Judge.

Action on a note by the Powder Valley State Bank against A. B Hudelson and another, partners as A. B. Hudelson & Son. From judgment for defendants, plaintiff appeals. Affirmed.

Geo. T. Cochran and Colon R. Eberhard, both of La Grande (Cochran & Eberhard, of La Grande, on the brief), for appellant. John S. Hodgin and J. D. Slater, both of La Grande, for respondents.

RAMSEY J.

The plaintiff is a banking corporation doing business at North Powder, in Union county. The defendants are a copartnership doing a mercantile business at North Powder. The Metzler-Hegsted Lumber Company was doing business in the manufacture and sale of lumber at or near North Powder, and the Radford Lumber Company, also, did business there. The Metzler-Hegsted Lumber Company manufactured lumber and sold it to the Radford Lumber Company, and the latter shipped it east, and paid the former company for the lumber by drafts on eastern banks. On the 2d day of February, 1912, the defendants executed to the plaintiff their promissory note for $1,000 payable in six months from its date, and bearing interest at the rate of 8 per cent. per annum. This action is based upon said note. The interest on said note to January 2, 1913, is credited by the complaint. The complaint demands judgment for $1,000 and interest thereon from January 2, 1913, and $150 as attorneys' fees, etc. The answer pleads payment of said promissory note and, also a counterclaim in the sum of $1,000 for money had and received by the plaintiffs for the use and benefit of the defendants, on the 16th day of December, 1912, and interest on the said sum. The reply denies the new matter of the answer and sets up new matter. The issues were tried by a jury, and a verdict and a judgment were rendered in favor of the defendants. The plaintiff appeals.

1. The plaintiff assigns as error the refusal of the trial court to instruct the jury to return a verdict for the plaintiff. The jury returned a verdict for the defendants. This imports that they found that the defendants' counterclaim had been made out, and that they set it off against the amount due the plaintiff on the promissory note pleaded in the complaint, and returned a verdict "for the defendants." The claim and the counterclaim were found to be equal. The finding of the jury cannot be set aside unless we can say affirmatively that there is no evidence to support the verdict. Section 3, article 7, of the state Constitution. By "evidence to support the verdict" is meant some legal evidence tending to prove every material fact in issue as to which the party in whose favor the verdict was rendered had the burden of proof. The defendants in this case had the burden of proof to make out their counterclaim. If there was any legal evidence to support the verdict, the trial court properly denied the motion for an instructed verdict. In determining this point we have nothing to do with the weight of the evidence. If there was any legal evidence to support the verdict, or to make out the defendants' counterclaim, the question was for the jury, and not for the court. The defendants furnished supplies to the men working for the Metzler-Hegsted Lumber Company, and said company was to pay the plaintiff therefor and charge the accounts of their employés with their respective portions thereof. On November 25, 1912, the Metzler-Hegsted Lumber Company was indebted to the defendants on account in the sum of $1,900, and on that day said company drew upon the plaintiff its check requiring the plaintiff to pay to the order of the defendants the sum of $1,000. At that time the said company did not have in the plaintiff bank enough funds to pay said check. On said 25th day of November, 1912, the defendants presented said check to the plaintiff at its bank and demanded payment thereof; but the bank did not pay the check, and gave as a reason for not paying it that the company did not at that time have sufficient funds in the bank to pay the check, and the assistant cashier stated to the defendants, also, that the defendants would have to wait until the next draft came. See Ev. p. 18.

The next day one of the defendants and E. J. Metzler, manager of the Metzler-Hegsted Lumber Company, called at the plaintiff bank, and Mr. Metzler said to the cashier of the bank (Lambert):

"I have given Will (meaning one of the defendants) a check for a thousand dollars (meaning the check referred to supra), and when my next draft comes in, you credit his account with that amount."

That was the day after said check was given. That afternoon one of the defendants left said check with Mr. Gilkison, assistant cashier, at the plaintiff bank, for collection, and it was kept there by the bank about two weeks (Ev. p. 23). W. A. Hudelson testifies that, when he left said check with the bank, he told Gilkison that, if the deposit should come in, to credit it immediately. He says that the bank did not refuse to pay said check (Ev. p. 23). He says, also, that the assistant cashier (Gilkison) had charge of the bank and said he would hold said check subject to the deposit and that he held it about two weeks. This witness testifies, also, that he informed the cashier (Lambert) that the deposit that the Metzler-Hegsted Lumber Company was expecting to be made was to come from the Radford Lumber Company, and that he told the bank to hold the check for $1,000 that had been given him as stated supra, until Brown, the manager of the Radford Lumber Company, made his deposit. C. H. Brown, as manager of the Radford Lumber Company, deposited with the plaintiff for the Metzler-Hegsted Lumber Company, on November 25, 1912, $1,500, and on November 27, 1912, $376.09, and on December 16, 1912, a draft for $1,000, and January 22, 1913, $430.35.

The defendant W. A. Hudelson says that, when he presented said check for $1,000 to the bank the second time for payment, on December 16, 1912, the bank had funds of the Metzler-Hegsted Lumber Company with which to pay it, as Mr. Brown had just deposited said draft for $1,000; but the assistant cashier, Gilkison, told him that he could not pay it, for Mr. Lambert had instructed him to apply the $1,000 on the note that the bank held against the Metzler-Hegsted Lumber Company.

E. J. Metzler, manager of the Metzler-Hegsted Lumber Company, testified that he sold the company's lumber to an eastern company (the Radford Lumber Company), and they usually paid for lumber on or about the 15th of each month, and that sometimes they were a little late in making payments; that he had to go away on business; so he went to the plaintiff bank and told the bank people that he wanted to issue checks and leave them with different parties for them to pay, on the receipt of money coming from the eastern company, and they said that would be all right. He says that he went ahead and issued the checks, covering all they would pay out for the month of December, "and left them--most of them--with the bank. One in particular I gave to Mr. Hudelson himself." He says that he and Mr. Hudelson walked over to the bank (after said $1,000 check was drawn), and that he told Mr. Lambert, the cashier, that he had given Mr. Hudelson a check for $1,000, "and naturally we expected it to be paid on the receipt of this money (from the east), not exactly in those words, but we talked along those lines." He says that Mr. Lambert did not exactly commit himself as to whether he would take the check or not, and the witness adds:

"We simply talked the matter over. My understanding was that this could be arranged all right. He was very busy that morning when we were talking to him."

In another place, this witness testified:

"I simply told Mr. Hudelson about the circumstances about the money not being there, and we went over to the bank, and I told Mr. Lambert that I had given Mr. Hudelson this check for $1,000, and as soon as the money came in I would like for him to take care of this check."

He said, also, that it was to be paid out of funds coming from the Radford Lumber Company on the November estimates. The checks referred to included the one to the defendants, and the witness thinks they were drawn about November 22, 1912.

There were other facts and circumstances tending to show that the plaintiff received from the Metzler-Hegsted Lumber Company, for the defendants, the $1,000 on December 16, 1912; but it is not necesary to set them out in this opinion. It is shown that the Metzler-Hegsted Lumber Company, on November 25, 1912, when it drew the check on the plaintiff, payable to the defendants, for $1,000, was indebteded to the defendants in the sum of $1,900, and that most of this was for supplies that the defendants had furnished the employés of said company at the latter's request, while they were manufacturing lumber. The check was drawn for only $1,000. The defendant presented the check to the plaintiff for payment, and the assistant cashier, then in charge of the bank, refused to pay the check at that time for the reason that the drawer did not have sufficient funds in the bank to pay it, and he informed the defendants that they would have to wait until the next draft came in. One of the defendants and Mr. Metzler called at the bank the next day, and the latter informed the cashier (Mr. Lambert) that he had given Mr. Hudelson a check for $1,000, and that, as soon as the money came in, he would like to have him take care of it. Mr. Lambert made no response, and Mr. Metzler adds that it was his understanding that that could be arranged all right, meaning, apparently, that it was his understanding, from what had been

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