Somers v. Hanson

• Decision Date: 23 November 1915
• Citation: 153 P. 43,78 Or. 429
• Parties: SOMERS v. HANSON. [a1]
• Court: Oregon Supreme Court

153 P. 43

78 Or. 429

SOMERS v. HANSON. ^[a1]

Supreme Court of Oregon

November 23, 1915

In Banc.

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

Action by F. P. Somers against Erastus Hanson, begun in justice court, and appealed by defendant to circuit court. From a judgment dismissing the action in that court, plaintiff appeals. Affirmed.

BEAN J., dissenting.

This action was commenced in the justice's court of Wallowa county. The initiatory pleading, as far as deemed material herein, reads:

"Comes now the plaintiff, by leave of court first had and obtained, and files this, his amended complaint, and for cause of action against the defendant says: That on the 17th day of August, 1914, at Enterprise, Or., for value received, the defendant and one Thomas Hanson made and delivered to plaintiff and A. S. Allen their joint and several promissory note in writing of that date, wherein they promise to pay to plaintiff and said A. S. Allen, 90 days after date thereof, $50, with interest after date at 8 per cent. per annum. * * * That said A. S. Allen sold and delivered, without indorsement, all his interest in said note to this plaintiff prior to the bringing of this action, and plaintiff is the owner and holder of the whole of said obligation, no part of which has been paid, and is long since past due and is owing from said defendant Erastus Hanson, to this plaintiff, and that he has refused to pay the same or any part thereof, though plaintiff has made demand for payment of same of him. That a copy of said note is hereto attached, marked 'Exhibit A.' and is made a part of this complaint. That prior to the commencement of this action said Thomas Hanson died. * * *"

The exhibit thus referred to is as follows:

"$50.00. Enterprise, Or., Aug. 17th, 1914. Ninety days after date without grace, I promise to pay to the order of A. S. Allen and F. P. Somers fifty dollars, for value received, with interest after date at the rate of 8 per cent. per annum until paid. Principal and interest payable in United States gold coin at Enterprise, Oregon. And in case suit or action is instituted to collect this note, or any portion thereof I promise to pay such additional sum as the court may adjudge reasonable as attorney's fees in said suit or action. Hanson Bros., by Erastus Hanson."

A demurrer to the complaint on the ground that it did not state facts sufficient to constitute a cause of action was overruled, and, the defendant declining to plead further judgment for the sum demanded was rendered against him, and he appealed to the circuit court for that county, where the issue of law thus raised was retried, the judgment reversed, the demurrer sustained, and the action dismissed, from which latter judgment the plaintiff appeals to this court.

O. M. Corkins, of Enterprise, for appellant. D. W. Sheahan, of Enterprise, for respondent.

MOORE, C.J. (after stating the facts as above).

The question to be considered is whether or not the complaint shows that the defendant incurred a personal liability by signing the promissory note sued upon. When a copy of any writing, designated as an exhibit, or otherwise sufficiently identified in a pleading, is attached thereto and thus becomes a part thereof, the effect of the instrument so displayed is the same as though it were incorporated in the body of the pleading. Caspary v. Portland, 19 Or. 496, 24 P. 1036, 20 Am. St. Rep. 842; Riley v. Pearson, 21 Or. 15, 26 P. 849; McLeod v. Lloyd, 43 Or. 260, 71 P. 795, 74 P. 491. The note must therefore be read in connection with and as a part of the complaint in order to determine the averments thereof. Thus construing the language of the initiatory pleading, it will be read as alleging that "the defendant and one Thomas Hanson made and delivered to plaintiff and one A. S. Allen a promissory note of which the following is a copy," setting it forth.

In Woods v. Town of Prineville, 19 Or. 108, 110, 23 P. 880, 881, Mr. Justice Strahan says:

"There are two modes at common law of bringing any writing upon the record by pleading; one was to set it out in hæc verba, and the other was to plead it according to its legal effect; and this rule remains unchanged by any provision of our Code."

When the contract sued upon is set out in hæc verba, it will be so construed that its legal effect will be recognized. If the writing is thus declared upon, it is superfluous to state what its legal effect is. 4 Ency. Pl. & Pr. 918. If there be any discrepancy between the averments of a pleading and the terms of a writing properly identified or attached to a statement of facts constituting a cause of action or a defense, the language of the exhibit will control in determining its legal effect. 31 Cyc. 563; Patrick v. Colorado Smelting Co., 20 Colo. 268, 38 P. 236; Lewy v. Wilkinson, 135 La. 105, 64 So. 1003. The promissory note having, in effect, been set forth in the complaint in the exact language employed in the negotiable instrument, the allegation of the legal effect of the writing as stated in the pleading must be disregarded as superfluous and variant.

In the notes to the case of Gavazza v. Plummer, 42 L. R. A. (N. S.) 1, 3, it is observed:

"A signing in which the name of the principal is followed by the name of the agent separated by the word 'by' or 'per' is uniformly regarded as a proper method of executing the agency so as to impose no personal liability upon the agent."

It is not alleged in the complaint herein that "Hanson...