Scandinavian-American Bank v. Wentworth Lumber Co.

• Decision Date: 12 July 1921
• Parties: SCANDINAVIAN-AMERICAN BANK v. WENTWORTH LUMBER CO. ET AL.
• Court: Oregon Supreme Court

199 P. 624

101 Or. 151

SCANDINAVIAN-AMERICAN BANK v. WENTWORTH LUMBER CO. ET AL.

Supreme Court of Oregon

July 12, 1921

Department 2.

Appeal from Circuit Court, Multnomah County; Robert G. Morrow Judge.

Action by the Scandinavian-American Bank against the Wentworth Lumber Company and others. From an adverse judgment, the named defendant appeals. Affirmed.

This is an action to recover the sum of $7,500 loaned by plaintiff and evidenced by certain promissory notes. The parties waived a jury, and the cause was tried by the court. From a judgment in favor of plaintiff, defendants appeal, assigning errors.

The following facts are, in substance, averred in the complaint. During the period of the transaction involved plaintiff was a banking corporation organized under the laws of the state of Oregon. On November 24, 1917, plaintiff duly changed its name from Scandinavian-American Savings Bank of Astoria, Or., to its present name of Scandinavian-American Bank of Astoria Or. The defendant Wentworth Lumber Company was a corporation duly organized and existing under and by virtue of the laws of the state of Oregon, engaged in the general lumber business near Linnton, Multnomah county, Or., with power to borrow money. On August 29, 1917, defendants John R Westervelt, John F. Worcester, Fred W. Skiff, and Harlin Wentworth each duly executed their respective promissory notes, each note being for the sum of $3,750, with interest at 8 per cent. per annum, and for reasonable attorneys' fees, in favor of the Scandinavian-American Savings Bank. Copies of the notes are set forth in the complaint. It is then averred thus:

"And then and there delivered the same to one certain C. H Leadbetter, who was then the president and general manager of defendant Wentworth Lumber Company, a corporation, for the purpose of making delivery thereof to said Scandinavian-American Savings Bank of Astoria, Or., in the event a loan of $7,500 was secured by defendant Wentworth Lumber Company, a corporation, from said Scandinavian-American Savings Bank of Astoria, Or., a corporation.

"That heretofore, to wit, on the 30th day of August. 1917, said Scandinavian-American Savings Bank of Astoria, Clatsop county, Or., loaned to defendant Wentworth Lumber Company, a corporation, and said defendant Wentworth Lumber Company, a corporation, borrowed and received of said Scandinavian-American Savings Bank of Astoria, Or., a corporation, the sum of $7,500 in gold coin of the United States of America, and that thereupon defendant Wentworth Lumber Company, a corporation, in consideration of said loan, made, executed, and delivered to the said Scandinavian-American Savings Bank of Astoria, Or., its certain promissory note, bearing date the day and year aforesaid, wherein and whereby it promised to pay on demand to the said Scandinavian-American Savings Bank of Astoria, Or., the said sum of $7,500, with interest thereon at the rate of 7 per cent. per annum from said 30th day of August, 1917, until paid."

The complaint sets forth a copy of the promissory note, referring to the four notes mentioned as security with authority to sell the same. It is further averred:

"That at the time of the making, execution, and delivery of the aforesaid promissory note of $7,500, dated August 30, 1917, made and executed by defendant Wentworth Lumber Company, a corporation, and as a part of the same transaction and as the consideration and inducement upon which and for which the said Scandinavian-American Savings Bank of Astoria, Or., made the said loan, and in consideration of said loan so made to defendant Wentworth Lumber Company, a corporation, the defendants John R. Westervelt, John F. Worcester, Fred W. Skiff, and Harland Wentworth delivered and caused to be delivered to said Scandinavian-American Savings Bank, by and through their said duly authorized agent, C. H. Leadbetter, as collateral security for the payment of said note of $7,500 of defendant Wentworth Lumber Company, a corporation, their said four promissory notes for the sum of $3,750 each, more particularly set forth and described in paragraph 3 of this complaint, to which reference is hereby made a part hereof.

"That thereafter defendant Wentworth Lumber Company, a corporation, duly paid the interest on said promissory note of $7,500 up to and including the 30th day of December, 1918, but no more, and that there now remains due, owing, payable, and unpaid, upon said promissory note of defendant Wentworth Lumber Company, a corporation, the total principal of $7,500, together with interest thereon since the 30th day of December, 1918, at the rate of 7 per cent. per annum."

Plaintiff is now the owner of the five notes. Each of the notes provides for the payment of reasonable attorneys' fees in case of action to collect the same.

Defendants moved to strike out a portion of the complaint for the reason that there were several causes of action embraced therein, and said causes of action were not separately stated. Upon the motion being overruled defendants demurred to the complaint for the reasons:

"(1) That several causes of action have been improperly united; (2) that the complaint does not state facts sufficient to constitute a cause of action; (3) that plaintiff has no legal capacity to sue."

The court overruled the demurrer, whereupon defendants filed an answer consisting of a general denial of the allegations of the complaint.

S. T. Richardson, of Salem (W. E. Richardson, of Portland, on the brief), for appellant.

Frank C. Hesse, of Astoria (Norblad & Hesse, of Astoria, on the brief), for respondent.

BEAN, J. (after stating the facts as above).

The defendants assign the overruling of the motion to strike and the demurrer as errors. These assignments involve similar questions. Tersely stated, according to the allegation of the complaint, the plaintiff loaned the defendant Wentworth Lumber Company $7,500, and this defendant and the other defendants by their promissory notes agreed to pay the same. The action is to recover the sum loaned with interest and attorney's fees. We incline to the belief that there is only one cause of action stated in the complaint, and that the same was not vulnerable to...