Toon v. Wapinitia Irr. Co.

• Decision Date: 16 February 1926
• Citation: 243 P. 554,117 Or. 374
• Parties: TOON v. WAPINITIA IRR. CO. [a1]
• Court: Oregon Supreme Court

243 P. 554

117 Or. 374

TOON v. WAPINITIA IRR. CO. ^[a1]

Supreme Court of Oregon

February 16, 1926

Department 2.

Appeal from Circuit Court, Multnomah County; Robert Tucker, Judge.

Action by Florence L. Toon against the Wapinitia Irrigation Company. Judgment for plaintiff, and defendant appeals. Affirmed.

This is an appeal from a judgment in favor of the plaintiff in the amount of $1,204.20, being money due as interest on 30 interest coupons payable to bearer issued by the defendant Wapinitia Irrigation Company, a corporation. The plaintiff alleges, among other things, her residence in Multnomah county, Or., and that the defendant is a corporation organized under the laws of Oregon, with its principal place of business in Portland. She alleges:

"That prior to the 1st day of October, 1921, and ever since said time, the plaintiff has been and now is the owner and holder of a certain interest coupon of the said defendant being in words and figures as follows, to wit:

" 'No. 2. Wapinitia Irrigation Company will pay to bearer on October 1, 1921, at the office of J. L Hartman, trustee, in Portland, Oregon, forty dollars and fourteen cents ($40.14), in United States gold coin being the interest on first mortgage bond No. 1, and interest coupon No. 6. [ Signed] E. E. Miller, Treasurer.

" '$40.14.' "

She avers demand of payment and defendant's failure to redeem its coupon, and alleges that there is now due and owing her from the defendant the sum of $40.14. She then alleges 29 like statements, making, in all, 30 causes of action, each based upon an alleged interest coupon, which coupons purport to be the interest coupons for bonds numbered 1 to 30 respectively, of the defendant company.

The court overruled defendant's demurrer to the complaint. The defendant, answering, denied the allegations contained in paragraphs 2 and 3, and, as affirmative defenses, pleaded:

"That each and all of the 30 instruments set forth and sued upon in plaintiff's amended complaint were, on or about the ________ day of September, 1914, delivered to one J. C. Bayer, the trustee; * * * that thereafter the said J. C. Bayer * * * fraudulently and unlawfully delivered said instruments, and each and all of them, to one Joseph R. Keep; * * * that said Keep never gave anything of value for said instruments, or either or any of them, but obtained the same without consideration and in fraud; * * * and said Joseph R. Keep * * * had no right to the possession of said instruments, * * * and was never the owner or lawful holder of said instruments. * * *"

The defendant further avers:

"That plaintiff claims to have the possession of said instruments; * * * and defendant alleges that, if she does have possession of said instruments or either or any of them, she secured the same from said Joseph R. Keep, and that, at and prior to the delivery thereof to her, she knew that the said Joseph R. Keep was not the lawful owner or holder of said instruments."

As a second affirmative defense the defendant avers that, if the plaintiff possessed the instruments described in her complaint, such possession was without any consideration.

The case was tried by the court, without the intervention of a jury. At the conclusion of plaintiff's testimony the defendant moved the court for a directed verdict, which motion was denied. The court found, in effect, that the plaintiff was the owner and holder in due course of the above-described interest coupons executed and issued by the defendant, which coupons were of the par value of $1,204.20; that the plaintiff had demanded payment of the coupons from the defendant; and that defendant had neglected and refused to pay the amount due thereon. As a conclusion of law, the court found that the plaintiff was entitled to judgment against the defendant in the sum of $1,204.20, with interest thereon. Judgment was entered accordingly.

In its appeal the defendant relies chiefly upon the alleged failure of the court to find that there was no evidence of the execution by the defendant, Wapinitia Irrigation Company, of the 30 interest coupons forming the basis of this action, and upon its failure to find that there was no evidence connecting defendant with the existence of these coupons.

Harry G. Hoy, of Portland, for appellant.

John A. Mears, of Portland, for respondent.

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

Our Code provides that, in cases tried to the court without a jury, "the finding of the court upon the facts shall be deemed a verdict. * * *" Or. L.§ 159.

The defendant contends in its brief that the complaint is insufficient to charge it with the execution and delivery of the alleged coupons. The complaint was not carefully prepared. But, if defendant's criticism be just, whatever defects it contains in the matter of the absence of allegations with reference to the existence of the securities have been cured by answer. In 14 Encylopedia of Pleading and Practice, p. 264, note, are quoted comments from the opinion in the case of In re Donaldson v. Butler County, 11 S.W. 572, 98 Mo. 163, which is applicable to the situation here. That was an action predicated upon a municipal coupon. In its decision the court held that the petition should show authority for the issuance of the instruments in suit, but that the defect was cured by answer. The following quotation, therefrom, is quite pertinent:

"The petition in this case is so defective that it would not support a judgment as against a motion in arrest, unless aided by the answer. The question then is whether the answer cures the defect. It denies that plaintiff is a holder of the coupons for value, and denies that defendant is, or ever was, liable for the payment of the coupons. It alleges that the bonds were satisfied and defendant released from the payment of them before they became due and before the plaintiff became possessed of the coupons, and inferentially charges him with notice of these alleged facts. The bonds are spoken of as public securities of the county prior to the alleged discharge of the county from liability thereon. Construing this answer as a whole, we take it to admit that the bonds were valid at their inception, but to claim that they ceased to be of any validity by reason of the discharge which was made matter of record in the county court. Not that the answer makes expressly any such admission, but that it is necessarily implied from what is stated. This being so it cures the defect in the petition. Garth v. Caldwell, 72 Mo. 622."

In this jurisdiction it is a well-settled rule of pleading that, where the plaintiff omits necessary averments from his complaint, which averments are supplied by defendant in his answer, the defect is cured. Treadgold v. Willard, 160 P. 803, 81 Or. 658.

Defendant asserts that plaintiff cannot prevail because she failed to allege the circumstances under which she acquired her title. In this the defendant is in error. Under well-supported rules of pleading, this is not a requisite. In an action on an instrument made payable to bearer, it is sufficient if the plaintiff allege that he is the bearer or owner and holder thereof. 14 Am. & Eng. Ency. of Plead. and Prac. 525.

The defendant treats the coupons sued upon as 30 existing coupons, but makes the defense that they were procured by plaintiff through fraud. It alleges that they were delivered to J. C. Bayer, trustee, to be held by him in such capacity for the benefit of the persons holding bonds of the Eastern Irrigation Power & Lumber Company, and then avers that each of these coupons was delivered to Joseph R. Keep; that, if the plaintiff possessed the coupons, she obtained possession of them from Keep, who was...