Galloway v. Bartholomew, 74 P. 467

Galloway v. Bartholomew

74 P. 467 | Or. | 1903

Mr. Justice Bean,

after stating the facts in the foregoing terms, delivered the opinion of the court.

1. Oral evidence of the contents of a writing, such as a promissory note, is not competent without first showing a legal excuse for not producing the original: Maxwell v. Bolles, 28 Or. 1 (41 Pac. 661). This rule was violated on the trial, but the error was harmless, as the evidence was immaterial. Neither the execution nor the contents of the note sued upon was in issue. It is true defendants denied its execution and delivery, except as alleged in their answers, but they afterwards affirmatively averred the execution and delivery by them to the plaintiff of a joint and several promissory note, of the date, for the amount, and containing the terms alleged in the complaint.

2. The fact, if it is a fact, that the word “surety” was written after the name of one of the makers did not render them any the less joint and several obligors, so far as their liability to the plaintiff is concerned: Bowen v. Clarke, 25 Or. 592 (37 Pac. 74; Williams v. Island City M. Co. 25 Or. 573, 591 (37 Pac. 49). It would only show that as between themselves one was principal and the other surety, and *78would perhaps charge the payee or holder with knowledge of that fact, but it would not affect their liability to the payee. The cause of action in favor of the plaintiff was therefore admitted by the defendants, and the plaintiff was not required to produce evidence on the trial in support thereof. ' The error in admitting the parol evidence was therefore harmless, and the motion for nonsuit was properly overruled.

3. The alleged alteration of the note was a matter of defense, and the burden of proof was upon the defendants.

Affirmed.