Sloan v. Sloan

• Decision Date: 19 December 1904
• Citation: 78 P. 893,46 Or. 36
• Parties: SLOAN v. SLOAN.
• Court: Oregon Supreme Court

78 P. 893

46 Or. 36

SLOAN v. SLOAN.

Supreme Court of Oregon

December 19, 1904

Appeal from Circuit Court, Baker County; Robert Eakin, Judge.

Action by Perry V. Sloan against Benjamin Leroy Sloan. From a judgment in favor of defendant, plaintiff appeals. Reversed.

This is an action to recover upon a promissory note given by the defendant to the plaintiff November 29, 1894, at Marengo Ind., calling for $140 one day after date, with interest at 8 per cent. and attorney's fees. One defense set up is that the note is barred by the statute of limitations. It appears by the bill of exceptions that at the trial, when plaintiff rested, counsel for the defendant moved for a nonsuit against plaintiff on the ground that the testimony shows that the statute of limitations has run against the note. The motion being sustained, the court thereupon directed the jury to return a verdict for defendant, which being done, judgment was rendered accordingly, and the plaintiff appeals.

O.B Mount, for appellant.

John L Rand, for respondent.

WOLVERTON J.

Two questions are presented for our consideration. The first relates to the action of the circuit court in sustaining the objection to a question put to the plaintiff while a witness in his own behalf, and the second to that of the court in directing a verdict for the defendant.

The note was identified by the plaintiff, and offered and received in evidence. There appear upon the back of it the following indorsements: "Marengo, Ind., Nov. 29 '96, rec'd on within note the sum of $40;" and "Marengo, Ind., Sept. 23rd, 1901, credited by corn, $2." The limitation of the action depends upon the authority that plaintiff had to make the latter indorsement. The witness having testified that there had been two payments made as indicated by these indorsements, and that the latter represented defendant's interest in a corn crop raised on his grandfather's estate, he was asked: "You simply wrote on the back of this note, 'Paid on corn $2,' did you?" to which he answered: "He had an agent there, a brother, L.E. Sloan. There was no administrator; the heirs were all of age, and this corn crop--" But seemingly before he had completed his answer he was again asked: "Did L.E. Sloan, his agent, have authority and instruct you to credit this two dollars as a part payment on this note?" to which question an objection was interposed as incompetent, irrelevant, and immaterial. This was sustained, and the court's ruling is assigned as error. There is a possible assumption in the question that L.E. Sloan was the agent of the defendant, but otherwise it was not subject to the objection for incompetency or irrelevancy. It was an inquiry as to his authority to direct the credit, and as to whether he instructed it to be made. It was significantly leading, however, and coming, as it did, without any previous attempt to show the alleged agency in the usual way, we cannot say that there was error in sustaining the objection.

It was further developed that witness had written to defendant from Indiana regarding the corn crop, that he (witness) had purchased it, and that defendant's share or interest therein amounted to two dollars, and that he had received an answer from him but that it did not specify anything in regard to the two dollars, whereupon the inquiry proceeded as follows: "Q. You have no letter, then, regarding the payment of the two dollars? A. No; I have not. Q. Did you have a talk with defendant regarding that two dollars? A. No sir. He was in Oregon, and I was in Indiana. Q. At the time you gave credit on this note did you write any letter to the defendant telling him what you had done, and asking him if it was agreeable to him? A. Yes, sir; I did. Q. When was this when you so addressed a letter to him? A. About the 15th of October. Q. What year? A. 1901. Q. Did you know what his post-office address was at the time you...