184 P. 549 | Or. | 1919
There is a very decided conflict in the evidence as to the execution of the supplemental agreement mentioned in the pleadings. Ja'cob Bezemer admits that the signature thereto is his, but disclaims any knowledge as to the circumstances under which he signed it, and insists very positively that there was never any understanding between them in ^regard to the sewer assessment, and is positive that it was never discussed between them. R. C. Hallberg is equally positive that it was fully discussed and assented to, and that it was cheerfully signed by Bezemer. Other witnesses testify that it was signed by Bezemer in John H. McNary’s law office, and in their presence. The note and mortgage were executed on April 18,1911, maturing April 18, 1914. Bezemer assigned the note and mortgage to his three children in July, 1912, upon their agreement to furnish him a home thereafter and they have fulfilled their obligation in that respect. The evidence is uncontradicted that they had no knowledge of the supplemental agreement until late'in the fall of 1915, long after the maturity of the note. On April 18, 1914, the date of the maturity of the note, plaintiff sought an extension of time thereon for another year. Mrs. Harriet, who was acting as the attorney in fact for her brother, Klaus Bezemer, and her sister, Anna Eberman, informed plaintiff’s husband, R. C. Hallberg, who has acted throughout as his wife’s agent, that Klaus Bezemer would not consent to any extension of time, and must have his share of the debt, with interest, at once, but that she and her sister would extend the time of payment of their portions until
“Salem, Ore., Apr. 18, -14.
“In consideration of the extension of the time of the payment of this note until Apr. 18,1915,1 agree to pay 8¶0 int. on the deferred payment of $2820.00.
“Marie Hallberg.
“By B. 0. Hallberg.’’
At the same time Hallberg paid one third of the amount then due, with the accrued interest thereon, with the understanding' that it was to fully satisfy Klaus Bezemer for his share of the note. No reference was then made to the sewer assessment by Hall-berg, and Mrs. Harriet was totally ignorant of any agreement in relation thereto. "Why Hallberg never mentioned it during the years that he was making payments upon both principal and interest; why, when he paid the share belonging to Klaus Bezemer, on April 18, 1914, he paid the same in full, with interest, and claimed no deduction on account of the sewer assessment, it is difficult to comprehend, and is not satisfactorily explained. However, it is not necessary for us to weigh the conflicting evidence in these particulars, since, in any event, the defendants are holders in’ due course of the note and mortgage, and hold them free from any defenses which might have been available against the payee: Section 5890, L. O. L.
The decree of the lower court is affirmed.
Aefirmed.
