De Vol v. Citizens' Bank
| Decision Date | 24 June 1919 |
| Citation | 92 Or. 606,181 P. 985 |
| Parties | DE VOL v. CITIZENS' BANK. |
| Court | Oregon Supreme Court |
In Banc.
Appeal from Circuit Court, Multnomah County; Robert Tucker, Judge.
On petition for rehearing. Denied.
For former opinion, see 179 P. 282.
Malarkey Seabrook & Dibble, of Portland, opposed.
It is urged in the petition for rehearing that Mary De Vol is estopped by her testimony in this case from afterwards commencing a proceeding to recover the money in question in an action on her own behalf, and therefore it is reasoned that on this account an estoppel of the defendant from making the claim that the money belonged to her is in some way brought about, and that her testimony in regard to the ownership of the money is therefore conclusive upon the defendant.
The learned attorney clearly confuses what might work an estoppel of Mary De Vol with what would be necessary to create an estoppel on the part of the defendant.
It would be a startling and unusual doctrine if a party in a case could be estopped or concluded by the mere testimony of a witness offered by the adversary party.
Much stress is placed upon the opinion of this court in Gardner v. Kinney, 60 Or. 292, 117 P. 971, but upon a careful examination of that case it will clearly appear that it is in no way in point upon the question here presented.
In the Gardner Case the plaintiff was an agent of the defendant and claimed to have authority to employ labor and pay the employés. He had employed one Johnson and paid him and was asking to have that claim added to his own. Both the plaintiff and Johnson testified that he looked to plaintiff for his pay. The question was not taken away from the jury as in this case, but was submitted to the jury, and the jury found in favor of the plaintiff upon the issues. It was in relation to such a case and arguendo only that the court used the language about estoppel referred to. If the question in this case had been submitted to the jury, and that body had found in favor of the plaintiff upon that issue basing its verdict partly or wholly upon the testimony of Mary De Vol, it may well be that, as said in the Gardner Case, she would have been estopped from bringing another suit for the same money, having, by her evidence, caused the defendant to once pay it to George De Vol, but this could in no way work an estoppel upon the defendant, as to the defense pleaded and insisted upon in this...
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Kane v. Kane
...Frank P. Kane held title to the land in controversy as trustee. Plaintiffs rely on De Vol v. Citizens' Bank, 92 Or. 606, 179 P. 282, 283, 181 P. 985. That case differs from instant case in this, the trustee in the De Vol Case executed the alleged trust while she held the title. The learned ......
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Chance v. Weston
...Chance was executed without authority. A trust in real estate cannot be created by parol. De Vol v. Citizens' Bank, 92 Or. 606, 179 P. 282, 181 P. 985; Riggs Adkins, 187 P. 303; Doran v. Doran, 99 Cal. 311, 33 P. 929; Cooper v. Thomason, 30 Or. 161, 45 P. 296; Annis v. Wilson, 15 Colo. 236,......
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Schrunk v. Hawkins
...v. Craft, 39 Or. 305, 64 P. 809; West v. McDonald, 64 Or. 203, 127 P. 784, 128 P. 818; Deil Vol v. Citizens' Bank, 92 Or. 606, 179 P. 282, 181 P. 985; v. Wallowa Nat. Bank, 100 Or. 679, 198 P. 560; Ramp v. Osborne, 115 Or. 672, 239 P. 112. We shall now review the portions of the evidence up......
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De Vol v. Citizens' Bank
...of money deposited with the defendant bank was before this court on a former appeal ( De Vol v. Citizens' Bank, 92 Or. 606, 179 P. 282, 181 P. 985), and was reversed for failure to give a certain instruction. When the cause was remanded, a general denial was filed as the bank's amended answ......