Sturgis v. Baker

• Decision Date: 15 June 1903
• Citation: 72 P. 744,43 Or. 236
• Parties: STURGIS v. BAKER.
• Court: Oregon Supreme Court

72 P. 744

43 Or. 236

STURGIS v. BAKER.

Supreme Court of Oregon

June 15, 1903

Appeal from Circuit Court, Umatilla County; W.R. Ellis, Judge.

Action by Lina H. Sturgis against William Baker. Judgment for defendant, and plaintiff appeals. Affirmed.

This is an appeal by plaintiff from the judgment upon the second trial of this cause. The complaint states, in substance, that on the 8th day of December, 1893, the defendant, for value executed and delivered to the Pendleton Mercantile Company his certain promissory note for the sum of $139, payable in six months from the date thereof, with interest at 10 per cent. per annum; "that thereafter the Pendleton Mercantile Company indorsed and transferred the said promissory note, and this plaintiff is now the owner and holder thereof;" that no part of said note has been paid, and there is now due and owing, etc. The answer admits the execution, but denies that said Pendleton Mercantile Company thereafter or at any time "indorsed or transferred said note to plaintiff, or that she is now the owner or holder thereof," and all subsequent allegations of the complaint, and sets up payment in full by defendant to S.P. Sturgis, who claimed to have the note in his possession. When the cause came to trial, defendant's counsel admitted that the note was indorsed by the Mercantile Company to Akin, Selling & Co., and to further sustain her cause plaintiff offered testimony tending to show that it was found among the private papers of S.P. Sturgis, who died in 1896 and with his other assets passed into her possession as his widow and sole legatee, and that it has remained in her possession ever since; that on the 13th of December, 1894 Sturgis was the cashier of the First National Bank of Pendleton, and was also loaning money on his own account discounting notes and doing a general money loaning and brokerage business; that on December 12th the said note was forwarded by Akin, Selling & Co. from Portland to the First National Bank of Pendleton for collection, with the request to send a check for the same; that, on the 13th, Sturgis, as cashier, remitted to the company $153.20 by Portland draft, and that such draft was purchased by Sturgis with his private funds; that on the left-hand corner of the note, near the bottom, was written in Sturgis' handwriting the figures "386" after the notation "No.," and on the top margin the words and figures "Pd. 13th Dec. 1894, 153.20," and some explanation was attempted to be made of the supposed meaning of these indorsements, in connection with the introduction of some private books and records of Mr. Sturgis, namely, that the figures "386" referred to his private bills receivable number, and the other memorandum indicated that he (Sturgis) paid, on December 13, 1894, $153.20 for the note. To further substantiate her cause plaintiff called C.B. Wade, who testified, in substance, that he was assistant cashier of the First National Bank of Pendleton on December 13, 1894; that Sturgis occasionally bought notes and scrip for himself; that it was the custom of Sturgis to put the canceled stamp on all notes paid at the bank, whether belonging thereto or any one else; that he never knew him, as cashier of the bank, to mark a note paid, similar to the mark on the top of this note; that on his own notes he made memoranda on the margin for his own benefit in making up his books, which indicated that he had bought a note on a certain day or had remitted for one at such time, or some transaction of that kind; that he probably put the memoranda there to enable him to enter the proper date in his books, and that when he signed the name "S.P. Sturgis, Cashier," it was usually on account of the bank business. On cross-examination witness testified, over objection, that as assistant cashier he had nothing to do with the note; that he did not know of any authority to sell it, but that it was there, and Akin, Selling & Co. accepted payment on it, and that the bank never purchased it; that Sturgis did not usually use the blank forms of the bank in making remittances on account of his personal business unless it was transacted through the bank; that, if notes came into the bank to sell, he had just as much right to sell to himself as to any one else; and, on redirect, that he did not know whether the bank purchased the note or not, or whether Sturgis purchased it of the bank; following which, defendant was permitted, over objection, to introduce evidence tending to show that Akin, Selling & Co. did not sell the note to either the First National Bank of Pendleton or Sturgis, and defendant testified in his own behalf that he paid the note to Sturgis. After being instructed, the jury returned a verdict in favor of the defendant, and, judgment being rendered thereon accordingly, the plaintiff appeals.

J.H. Raley, for appellant.

T.G. Hailey, for respondent.

WOLVERTON J. (after stating the facts).

The first assignment of error is...