144 P. 396 | Or. | 1914
delivered the opinion of the court.
This is an action upon a contract to recover money due as commissions for selling corporate stock of the defendant company. On October 26, 1909, Henry G. Sonnemann, George C. Mourer, George R. Baker and George W. Morgan entered into a written contract for the sale of 6,000 shares of the capital stock of the defendant. Thereafter George R. Baker and George W. Morgan sold their interests in said contract to L. C. Hammer and H. G. Luker, and this transfer was consented to by the defendant. On November 18, 1911, H. G. Luker, H. G. Sonnemann, George C. Mourer, J. E. Murphy and L. C. Hammer were duly adjudged
“That tbe Safety Investment Company, a corporation of tbe State of Oregon, was organized as a close corporation during tbe year 1908 or 1909, tbe entire membership and ownership of tbe stock of said company being George C. Mourer, L. C. Hammer, H. G. Luker and Henry G. Sonnemann, tbe said just named parties owning tbe entire capital stock of the said corporation, and tbe said corporation being formed by tbe said parties for tbe sole purpose of exploiting and handling tbe sale of stock of tbe defendant herein, and perhaps other corporations as well. That afterward, to wit, during tbe months of May or June, 1909, and while said close corporation was composed entirely of tbe plaintiffs herein, and on tbe 2d day of June, 1909, a promissory note in tbe sum of $18,170 was executed in favor of and delivered to defendant herein, and after tbe maturity of tbe said note, which was prior to October 26, 1909, tbe sum of $3,385 was paid thereon by tbe makers thereof only, and there now remains due from the plaintiffs herein to tbe defendant tbe sum of $14,785. That, by mistake and without authority, the said note was marked ‘Canceled’ by a committee appointed by defendant to see what could be done in the way of collection of tbe said note, while as a matter of fact tbe said sum of $3,385 is tbe total amount paid by plaintiffs to defendant upon said promissory note, and there still remains due upon said note tbe said sum of $14,785.”
Tbe reply denies much of tbe new matter of the answer, and alleges, etc.:
“That heretofore, and on or about tbe 18th day of November, 1911, an order was duly made and entered*132 by tbe District Court of the United States for the District of Oregon in the matter of H. Gr. Luker, H. Gr. Sonnemann, George C. Mourer, J. E. Murphy, and L. C. Hammer, bankrupts, adjudging the said H. G. Luker, H. G. Sonnemann, George C. Mourer, J. E. Murphy, and L. C. Hammer bankrupt, and thereafter and on or about the 29th day of November, 1911, at a duly and regularly called meeting of the creditors of said bankrupts, the above-named plaintiff, A. A. Cum ningham, was duly and regularly elected trustee of said bankrupts, and thereafter duly qualified as such trustee in the manner provided by law, and ever since said date has been and now is the duly acting and qualified trustee of said bankrupt estate. That said bankrupt proceeding since the date above mentioned has been and now is pending in the said District Court of the United States for the District of Oregon. That prior to the execution and delivery of the note set out in the further second and separate answer and by way of counterclaim or setoff of the defendant, herein, the said L. C. Hammer and George C. Mourer, for a valuable consideration, sold, assigned and transferred their claim under the contract alleged in plaintiffs’ complaint herein to Bertha E. Hammer and Harry G. Mourer, respectively, and that the defendant corporation was duly notified and had notice thereof at the time of the making of said assignments as alleged in plaintiffs’ complaint, and that by reason thereof the defendant cannot claim a setoff or counterclaim against the rights of the plaintiffs Bertha E. Hammer and Harry G. Mourer.”
This cause was tried without a jury, and the trial court made findings and entered a judgment in favor of the plaintiffs for the amount demanded in the complaint. The defendant appeals.
14 Ency. Pl. & Pr., page 118, says:
“The objection or objections on which the motion is founded should be stated specifically, so that the court may readily see that the motion should be granted. Not only must a party assign a ground for his motion, but he must assign all the grounds for the relief sought which he may have, and objections known to exist and not raised at the time of the motion may be deemed waived. ’ ’
In Flynn v. Dougherty, 91 Cal. 669, 671 (27 Pac. 1080, 14 L. R. A. 230), the court says:
‘ ‘ The rule is well settled here that a nonsuit cannot stand unless the ground upon which it is supported was called to the attention of the court and the plaintiffs at the time the motion was made.”
In Ferguson v. Ingle, 38 Or. 43, 44 (62 Pac. 760), the court says:
*134 “Considering these questions in inverse order, the rule is well settled that the motion of an adverse party for a nonsuit must specify the grounds therefor, and, unless it does so, an appellate court will not review the action of the trial court in denying the motion.”
In Meier v. Northern Pacific Ry. Co., 51 Or. 69, 75 (93 Pac. 690), the court says:
“The rule is well settled that the motion of an adverse party for a nonsuit must specify the grounds therefor, and, unless it does so, an appellate court will not review the action of the trial court in denying the motion,” etc.
The reason for the enforcement of this rule is to advise the trial court and the plaintiff of the grounds upon which the mover will rely and to prevent suprise. The record in this case states only that, at the conclusion of the plaintiffs’ evidence in chief, “the defendant moved for judgment.” Such a statement is insufficient, and raises no question for review in this court.
“That afterward, to wit, during the months of May or June, 1909, and while said close corporation was composed entirely of the plaintiffs herein, and on the 2d day of June, 1909, a promissory note in the sum of $18,170 was executed in favor of and delivered to the defendant herein, and after the maturity of said note, .which was prior to October 26, 1909, the sum of $3,385 was paid thereon by the makers thereof only, and there*135 now remains due from the plaintiffs herein to the defendant the sum of $14,785.”
The said allegation does not state who executed said promissory note. It is fatally defective in that respect. A counterclaim upon a promissory note should be pleaded with the same particularity that would be required in a complaint based upon the same note: Le Clare v. Thibault, 41 Or. 601, 608 (69 Pac. 552); Watson v. McLench, 57 Or. 446 (110 Pac. 482; 19 Ency. Pl. & Pr. 752, 753).
In 19 Ency. Pl. & Pr. 752, 753, the rule as to pleading a counterclaim is stated thus:
“A plea or answer in which the defendant asserts a * * counterclaim * * must contain the substantial requisites of a declaration or complaint, and must allege facts which would be legally sufficient to entitle the defendant to recover in an action instituted by him against ■ the plaintiff. ’ ’
The same volume on page 755 says:
“When the right to assert a setoff or counterclaim depends wholly upon statute, it is not sufficient that the defendant alleges a good cause of action in his favor against the plaintiff, but he must allege facts which bring his claim within the provisions of the statute,” etc.
The allegation as to the pretended counterclaim states merely that:
“A promissory note in the sum of $18,170 was executed in favor of and delivered to the defendant herein. ’ ’
There is no averment as to who executed this note. The statement that a certain amount is due from the plaintiffs to the defendant is a mere conclusion of law. The defect in said allegation is not a mere irregularity.
When a document is ruled out by the trial court, and the appellant excepts to such ruling, and desires to have it reviewed in the appellate court, it is incumbent on him to make such document or a copy thereof, a part of the bill of exceptions, so that the appellate court can examine it and determine its admissibility. Unless this is done, the appellate court cannot review
Where objection to a question is sustained by the trial court and the witness is not permitted to answer, in order that the ruling of the court thereon may be reviewed, it is necessary for the party asking such question to state and have incorporated into the bill of exceptions what facts he expected to prove by the witness, and, unless he does so, the appellate court can-note review the ruling of the trial court excluding such proposed evidence: Kelley v. Highfield, 15 Or. 277, 293 (14 Pac. 744).
We hold that said proposed evidence was properly excluded, because the said pretended counterclaim was not properly pleaded, and also that the ruling excluding said promissory note cannot be reviewed for the further reason that it is not set out in the bill of exceptions.
Chapter 99 of the Laws of 1911 (Gen. Laws 1911, p. 145), which was in force when the pleadings in this action were filed, describes a counterclaim in part as follows:
*138 “The counterclaim mentioned in Section 73 must be one existing in favor of a defendant, and against a plaintiff, between whom a several judgment might be had in the action, and arising out of one of the following causes of action. * *
“(2) In an action arising on contract, any other cause of action arising also on contract and existing at the commencement of the action, ’ ’ etc.
It is in some instances difficult to determine when an indebtedness may or may not be properly pleaded as a counterclaim.
Bliss on Code Pleading, Section 367, says in part:
11 The counterclaim must be between the same parties. If it is necessary to bring in other parties, the matter cannot be presented as a counterclaim, but a new action may be commenced,” etc.
Professor Pomeroy, in his work on Code Remedies (4 ed.), Section 637, says in part:
“By the decisions which have been reviewed in the foregoing paragraphs, certain specific rules are clearly established for all the states whose codes may be classed in either of the two general groups mentioned at the commencement of this section. First, when the defendants in an action are joint contractors and are sued as such, no counterclaim can be made available which consists of a demand in favor of one or some of them. Secondly, when the defendants in an action are jointly and severally liable, although sued jointly, a counterclaim, consisting of a demand in favor of one or some of them, may, if otherwise without objection, be interposed. * * Fifthly, when two or more persons have a joint right of action, and unite as plaintiffs to enforce the same, a counterclaim cannot be admitted against one or some of them in favor of any or all of the defendants. ’ ’
34 Cyc., pages 729, 730, says:
“In accordance with the rules above stated, a separate demand a'gainst one of plaintiffs cannot be set off*139 against a joint demand dne all of plaintiffs, nor can defendant set off a demand against less than all of several joint plaintiffs; and a claim due from plaintiff and another person jointly is not a subject of setoff in an action by plaintiff alone, nor can such claim be counterclaimed; and where one of the co-obligees in a joint obligation assigns his right therein to the other, who sues thereon, defendant cannot set off a claim against the assigning obligee and another jointly. In a suit by several plaintiffs for a joint demand, a debt due from one of the plaintiffs and another person, not a party to the suit, jointly, cannot be set off, hut such a claim may be set off by agreement between the parties. A defendant in a suit against him for a debt cannot set off a debt due him and another, the demands hot being mutual, nor can defendant avail himself of such debt as a counterclaim,” etc.
In Richmond v. Bloch, 38 Or. 317 (60 Pac. 388), the syllabus is:
“A defendant cannot set off against the judgment against her and her codefendants a judgment that she alone had received in a former action against the plaintiff and another, who was not a party to the last action.”
In Coleman v. Elmore (D. C.), 31 Fed. 391, the syllabus is:
“A cause of action arising on a liability, promise or undertaking of a partnership is a joint one only; and under Section 72 of the Code of Civil Procedure, in an action thereon against the members of the firm, one of the defendants cannot maintain a counterclaim arising on a cause of action existing in his own favor. ”
The promissory note, pleaded as a counterclaim, is a joint and not a several obligation. It was executed to the defendant, but it was not signed by either of the plaintiffs. It was signed by L. C. Hammer, J. E. Murphy, H. G. Luker and H. G. Sonnemann. J. E. Mur
“That the defendant shall not he required to admit in his answer any liability or indebtedness to the plaintiff in order to be permitted to plead a counterclaim.”
The language, “that the defendant shall not be required to admit, ’ ’ seems to indicate an intention on the part of the lawmaker that said provision should operate prospectively and apply only to answers filed after it should take effect. We hold that to be the effect of said amendment. It took effect on June 3, 1913, and the answer was filed May 14, 1913. The said amendment does not apply to the answer in this case. The facts stated in the answer, relating to said promissory note for $1,900, do not constitute a counterclaim, and the trial court did not err in excluding it.
There was no agreement to pay interest on said commissions, and hence the plaintiffs ’ right to interest depends upon the statute. Section 6028, L. O. L., is as follows:
“The rate of interest in this state shall he 6 per centum per annum, and no more, on all moneys after the same become due; on judgments and decrees for the payment of money; or money received to the use of another and retained beyond a reasonable time without the owner’s consent, express or implied, or on money due upon the settlement of matured accounts, from the day the balance is ascertained; on money due or to become due where there is a contract to pay interest and no rate specified; but on contracts, interest up to the*143 rate of 10 per centum per annum may be charged by express agreement of the parties, and no more. ’ ’
The adjustment made by the parties on March 4, 1910, as shown by the findings was not a settlement of matured accounts. The findings show that the account for commissions was not then due or matured. The first sentence of the statute quoted supra applies to the facts of this case, and interest on said commissions began to run only from the time the commissions became due and payable, and they did not become due and payable until said promissory notes matured. The findings show that said notes matured before the making of said findings, but the exact date of the maturity thereof is not stated. We are bound by the said findings, and they are to be construed as the special verdict of a jury.
We conclude, therefore, that the plaintiffs are entitled to interest on said sum of $6,873.43 at the rate of 6 per centum per annum only from the date of the filing of said findings, and not from March 4, 1910, and that the trial court erred in allowing interest on said commissions from March 4,1910. We find no merit in the other points contended for by the appellants.
The judgment of the court below is modified, and this cause is remanded to the court below, with directions to enter a judgment in favor of the plaintiffs and against the' defendant for the said sum of $6,873.43, with interest on said sum at the rate of 6 per centum per annum from the date of the filing of said findings (and stating said date), and costs and disbursements in the court below, in accordance with the terms of this opinion. Modified. Rehearing Denied.