Witt v. Campbell-Lakin Segar Co.

• Decision Date: 22 July 1913
• Citation: 134 P. 316,66 Or. 144
• Parties: WITT v. CAMPBELL-LAKIN SEGAR CO.
• Court: Oregon Supreme Court

134 P. 316

66 Or. 144

WITT v. CAMPBELL-LAKIN SEGAR CO.

Supreme Court of Oregon

July 22, 1913

Department 2.

Appeal from Circuit Court, Multnomah County; Henry E. McGinn, Judge.

Action by C.B. Witt against the Campbell-Lakin Segar Company. Judgment for plaintiff, and defendant appeals. Reversed, and new trial ordered.

This is an appeal from the judgment of the circuit court of Multnomah county, given in an action at law to recover upon a promissory note, which note was given by defendant for the price of a shipment of cigars made in pursuance of a contract which appears in full in the opinion. The president of the defendant was called and admitted the execution of the note which was then offered and received in evidence. The note had upon it an indorsement in blank, purporting to have been made by the El Nacional Cigar Company, by C.B. Witt, president one by the Citizens' Bank & Trust Company, of Tampa Fla., and one by the National Bank of Kentucky. There was no testimony tending to show the genuineness of the indorsements, and they were not offered in evidence. The answer denied that plaintiff was the owner and holder in good faith and in due course of the note sued upon, and that it had been indorsed to him in good faith and before maturity. The principal defense to the note was that certain cigars furnished by the El Nacional Cigar Company were unsatisfactory; that defendant had returned them as provided in the written contract; and that the value of the cigars so returned was counterclaimed against the amount due on the note. The plaintiff, after introducing the note in evidence asked witness Campbell the following questions: "Q. And this note was given, then, in full satisfaction and accord in your dealings with them between February and November, 1910 and 1911? A. Yes, sir. Q. Was it given in full settlement of all your differences up to this date? A. Yes, sir. Well, I think there was something that came up later on. Q. $140? A. Yes, sir." The witness was then called on behalf of defendant and testified at length as to the attempts made by his company to introduce the cigars in the market. He testified that it was the custom of his company, at the request of the El Nacional Cigar Company, to give its promissory note for each shipment, the reason given by the agent of the company for requesting this being that the company wished to use the notes as collateral in their business; that, when the note in suit was given, witness proposed to the agent of the El Nacional Cigar Company to return the cigars on hand, but the agent requested him to make further trial of them before returning them. Several witnesses testified to facts tending to support defendant's contention; the testimony being too voluminous to be here recited. The cause was tried without a jury, and the judge, after hearing a part of the evidence, announced that he would not hear nor consider other evidence submitted as it would not weigh in his mind against other written evidence already received. He, however, allowed the testimony to be taken, as he then stated, for the purpose of making a record for the Supreme Court. There were findings for the plaintiff, and defendant appeals.

John McCourt, of Portland (Veazie & Veazie, of Portland, on the brief), for appellant.

E.B. Seabrook, of Portland (Malarkey, Seabrook & Stott, of Portland, on the brief), for respondent.

McBRIDE C.J. (after stating the facts as above).

The testimony admitted for the purpose of making a record for the Supreme Court should be treated as though it had been offered and rejected.

In the view that the court took of the law, it is difficult to see how the defendant has been prejudiced by the statement of the judge that he would not hear nor consider the evidence. In fact, the defendant stands in a better position upon appeal than it would had the judge made no statement of his views as to the evidence offered. Had he, after hearing all of the evidence, made the same findings that are here presented in the record, they would probably have been conclusive against defendant, and it would have been remediless upon appeal. As it is the bill of exceptions shows that the findings were made upon a portion only of the testimony, and that the testimony offered by the defense was rejected. If this testimony was admissible, and we are of the opinion that it was, we are at liberty to disregard the findings. Witt, the plaintiff, was president of the El Nacional Cigar Company and naturally, as well as by legal presumption, must have had knowledge and notice of its dealings with its customers including the contract with the defendant. This contract was in writing and is as follows: "The El Nacional Cigar Co., Tampa, Fla., by their representative and vice president, Mr. Wm. Lineaweaver, hereby agree that Mr. Lineaweaver or some cigar salesman satisfactory to the Campbell-Lakin Segar Co., will devote such time as is necessary to assist the Campbell-Lakin Segar Co. in placing and popularizing the Fama Nacional Cigar in the territory covered by the Campbell-Lakin...