46 P. 794 | Or. | 1896
Opinion by
This is an action by Norris R. Cox against Robert Alexander, John Robertson, and G. W. Wallace, to recover
“$3,150. Portland, Or., April 18, 1893.
Ninety days after date, without grace, we, or either of us, jointly and severally promise to pay to the order of ........three thousand one hundred and fifty dollars, for*441 value received, with interest after date at the rate of eight per cent, per annum until paid, principal and interest payable in U. S. gold coin at......... and in case suit or action is instituted to' collect this note or any portion thereof, we or I promise to pay such additional sum as the court may adjudge reasonable as attorneys’ fees in said suit or action.
(Signed) Robertson & Alexander,
John Robertson.
G. W. Wallace.”
It is then added that Alexander refused to ratify or confirm the purchase, or to execute or deliver said note, and the persons with whom said contract was made failed to deliver the stock, and the said negotiations were terminated; that subsequently, without authority or consideration therefor, the persons to whom said writing had been delivered caused it to be perfected in the form of a promissory note, and indorsed to plaintiff for collection, who brought this action thereon. ‘‘And for a further and separate defense to plaintiff’s complaint, defendants allege: That there never was any value or consideration passed from Thomas O’Day or any one to these defendants for said note, and the same came into the hands of said O’Day wholly without consideration, and the plaintiff, at the time the same was indorsed and transferred to him, had notice and knowledge that the same was wholly without consideration.” The reply having put in issue the allegations of new matter contained in the answer, except the separate defense above quoted, a trial was had, resulting in a verdict for the amount due on the note only; and upon the issue of attorney’s fee the court found that $250 was a reasonable sum therefor, and gave judgment on the'verdict, and also for such attorney’s fee, from which the defendant Alexander appeals.
As another ground for the dismissal of the appeal, plaintiff’s counsel maintains that the printed abstract does not comply with the rules of this court, in that it does not affirmatively show on its face that the trial court committed any error. Rule 4 (24 Or. 595, 37 Pac. 6) makes it incumbent upon the appellant to serve upon the attorney for each respondent a printed copy of so much of the transcript as may be necessary to a full understanding of the question presented for decision. The abstract so served in this case states the general nature and substance of the pleadings, and contains a copy of the further and separate defense to the complaint; but, because copies of the entire pleadings are not embraced therein, it is insisted that the appellant has not complied with said rule. The
In Angle v. Northwest Mut. Ins. Co., 92 U. S. 330, Mr. Justice Clifford, in commenting upon this subject, says: “Persons dealing with an agent are entitled to the same protection as if dealing with the principal, to the extent that the agent acts within the scope of his authority. Pursuant to that rule, it is settled law that where a party to a negotiable instrument intrusts it to another for use as such, with blanks not filled up, such instrument so delivered carries on its face an implied authority to complete the same by filling up the blanks; but the authority implied from the existence of the blanks would not authorize the person intrusted with the instrument to vary or alter the material terms of the instrument by erasing what is written or printed as a part of the same, nor to pervert the scope and meaning of the same by filling the blanks with
Reversed.