Godfrey v. Howes

178 P. 388 | Or. | 1919

JOHNS, J.

This opinion will be as brief as the court’s instructions, to which neither party took an exception.

Defendant relies upon Section 1241, L. O. L., which, among other things, provides that:

“No claim which shall have been rejected by the executor or administrator as aforesaid, shall be allowed by any court, referee, or jury except upon some competent or satisfactory evidence other than the testimony of the claimant.”

—and contends that there is no “evidence other than the testimony of the claimant” that the deceased ever collected or received any money belonging to the plaintiff.

1, 2. The proof is conclusive that the deceased did collect and receive the money and that any money which he collected for the plaintiff was received by him as her agent and attorney in fact. For that reason the burden of proof shifts and it devolves upon the defendant to allege and prove that the deceased paid over and fully accounted to the plaintiff for all moneys received hy him as her attorney in fact; that is the force and effect of the decision of this court in Quinn v. Gross, 24 Or. 147 (33 Pac. 535). But there is no evidence that the deceased ever paid over or accounted to the plaintiff for any of the moneys which he collected as her agent. Again, the plaintiff does not testify that the deceased made any collections for her; she testifies only that she did not receive the proceeds of such collections and the fact that they were made hy the deceased was established by other strong and independent evidence, including Howes’ own signature and receipts for the money as her attorney in fact.

The judgment is affirmed.

Affirmed.

McBride, C. J., and Bean and Harris, JJ., concur.