Proebstel v. Trout

• Decision Date: 07 November 1911
• Citation: 60 Or. 145,118 P. 551
• Parties: PROEBSTEL v. TROUT et al.
• Court: Oregon Supreme Court

118 P. 551

60 Or. 145

PROEBSTEL v. TROUT et al.

Supreme Court of Oregon

November 7, 1911

Appeal from Circuit Court, Multnomah County; C.U. Gantenbein, Judge.

Action by H.O. Proebstel against W.A. Trout and another. From a judgment for plaintiff, defendant named appeals. Affirmed.

The substance of the complaint in this suit is that about December 8, 1908, the defendant Trout borrowed from Florence Rucker $1,000, giving his note therefor, and at the same time executed and delivered to her the following writing "Whereas I, the undersigned, W.A. Trout, secured a loan from Florence Rucker this 8th day of December, 1908, in the amount of $1,000.00, and due on or before six months from date, as evidenced by a certain promissory note signed by me and payable to said Florence Rucker and due in said amount and due at said time, and being desirous of securing the payment of said note, we do hereby deposit with said Florence Rucker twenty thousand shares of the stock of the Portland Collapsible Box Company, incorporated under the laws of the state of Oregon, as collateral security for the payment of said note. Said stock being evidenced by certificate No. 74 to Walter A. Trout for 20,000 shares. Said stock is deposited with said Florence Rucker for the purpose above set forth and under the following conditions, to wit: If said note be not paid when due, with interest and other charges due thereon in full, then said certificate and shares of stock shall belong absolutely to said Florence Rucker, and the secretary of said Portland Collapsible Box Company, or other proper official is hereby authorized and directed to transfer to the said Florence Racket on the books of said company and to do any and all things necessary to a full, correct and legal transfer of the ownership of said stock or certificates thereof from the undersigned to the said Florence Rucker. In witness whereof, I have this day set my hand this 8th day of December, 1908. [ Signed] W.A. Trout." It is further alleged, in substance, that on July 12, 1909, Florence Rucker sold, assigned, and transferred the debt then due from defendant Trout to G.C. Donaldson, and thereafter, on the 21st of July, G.C. Donaldson, for a valuable consideration sold, assigned, transferred and delivered said debt to one S.J. Donaldson, one of the defendants herein.

It seems that about this time Florence Rucker and G.C. Donaldson intermarried, and on July 21, 1909, they indorsed and signed upon the back of the pledge contract the following writing "We, the undersigned, for value received, hereby sell, assign, and transfer all right, title, and interest in and to the within contract and to the stock therein described and set forth, with full power to have said stock transferred on the books of the company, as agreed on in said contract by Walter A. Trout to S.J. Donaldson." The plaintiff alleges the subsequent assignment to himself of the debt and contract of pledge; that no part of the debt has been paid by the defendant Trout; and, further, that S.J. Donaldson, one of the defendants, claims to own an equity in the certificate of stock amounting to 6,950 shares. The usual prayer is made for a decree against the defendant Trout for the sum of $1,000 and interest, and that the stock be sold for the satisfaction of the decree. In the answer of the defendant Trout he "admits that on or about the 8th day of December, 1908, he borrowed from one Florence Rucker the sum of $1,000. In this connection the defendant alleges that he executed his promissory note therefor due June 8, 1909, payable to the said Rucker, and bearing interest at the rate of 10 per cent. per annum, and further admits that he delivered to Rucker at the time of the execution of the contract a certificate for 20,000 shares of the capital stock of the Portland Collapsible Box Company for the purposes set forth in said contract; that said contract was executed and the said stock certificate delivered solely as security for the payment of the promissory note mentioned in paragraph 1 of this answer." Otherwise the defendant Trout denies every allegation of the complaint. Further, in his answer the defendant Trout alleges that on July 23, 1909, he was ready, willing, and able to pay the full amount due on the promissory note described, and on that day he duly tendered to Florence Rucker, also to S.J. Donaldson, mentioned in the complaint, the full amount, with all accrued interest due upon the said promissory note, and demanded the return to him of the certificate for the said corporate stock. It will be noted in passing that he does not allege what amount of money he tendered at the time mentioned. He further states "that long prior to the commencement of this suit the owner and holder of the aforesaid promissory note surrendered, canceled, and delivered up the said note to the defendant, and the said note was then and there satisfied, discharged, and canceled." He prays that the plaintiff take nothing by this suit, and further prays an affirmative order of the court directing and requiring the plaintiff to deliver up the certificate for 20,000 shares of the capital stock of the company. The new matter in Trout's answer is traversed in the reply. The answer of the defendant S.J. Donaldson asserts title in himself to 6,950 of the 20,000 shares named in the certificate of stock, and alleges that at the time he transferred the note and contract of pledge to the plaintiff he gave the latter notice of that claim. The new matter in the answer of the defendant S.J. Donaldson is not controverted by any one, either the plaintiff or the codefendant Trout, so far as we can discover from the transcript or abstract of record before us. After a trial on the issues involved, the circuit court rendered a decree according to the prayer of the complaint, directing a sale of the 13,050 shares of the stock owned by Trout to be made first to satisfy the decree, and, if that were insufficient, that the 6,950 shares belonging to Donaldson be next sold. The defendant Trout alone appeals.

A.E. Clark (Collier & Collier and A.E. Clark, on the brief), for appellant.

G. Evert Baker, for respondent Proebstel. L.E. Huntsman, for respondent Donaldson.

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

The plea of tender made by the defendant Trout can avail him nothing in this suit, for the reason that he does not state the amount of money which he tendered to Donaldson on the date he mentions. To make the plea of tender effectual, the amount tendered must be...