124 P. 206 | Or. | 1912
delivered the opinion of the court.
The question presented in this case is one of fact. As stated, Madison Jones died on the 16th day of December, 1910, leaving a will in which plaintiff, G. W. Jones, was named as executor. For a long time Mr. Jones had been a respected citizen of Pendleton, engaged in loaning money. At the time of the transaction in dispute, he was about 79 years of age. For months he had been in poor health, and for several years had been nearly blind, not being able to read or count money. Therefore in going about the city, and in conducting his business, he relied upon relatives and friends for assistance. It was his custom to keep all notes and mortgages, together with the abstracts of title to the mortgaged property, in tin boxes which were usually deposited in
Defendant John H. Dozier is a wheat raiser of Umatilla County. When a demand was made upon him for payment of the note, he stated and testified upon the trial that he paid the same to Madison Jones at the latter’s home late in September, 1910; that Mrs. Sarah F. Jones, on account of her husband’s poor eyesight, counted the money, and at the direction of Mr. Jones delivered the note, mortgage, and abstract of title to him ; that there was a younger lady, who appears to have been Mrs. Peartree, daughter of Mrs. Jones, about the house at the time, but that she was not present when the 'money was paid; that Mr. Jones wanted a written description of the mortgaged land in order to cancel the right mortgage of record, as he had several; and that he (the defendant) left the mortgage with Jones for such purpose, with directions to either destroy the same or send it to him after “he had taken it off the records”; but that the mortgage was never sent to him. Dozier further stated that he borrowed $1,600 of the money from Gustave La Fontaine, a well-known business man of Pendleton, at his restaurant, and rode with Neil Dozier to the Jones residence; that Neil Dozier waited outside for him while he went into the house and paid the money; that when he came out with the note and abstract, he tore the names from the note in the presence of Neil Dozier. In this latter testimony, Dozier is corroborated by the evidence of La Fontaine and Neil Dozier. Defendant Dozier also stated that he saw Jones in regard to the matter two or three times during September. The
It appears that Mrs. Jones was the sister of Madison Jones’ first wife; that they had been married about three years; that soon after the time the payment is claimed to have been made, Mrs. Jones commenced a divorce suit, asking for one-third of her husband’s real and personal property, which was valued at $60,000; that she settled with him for $550, and abandoned the case; that they separated; and that on October 9th of that year she and her daughter, Mrs. Peartree, went to Los Angeles, California, where they have since resided. Mrs. Jones, who was 68 years of age, testified that the only time she saw Dozier at the home of Madison Jones during that -fall was on September 25, 1910, when he talked with her husband about the money, but did not pay him; that the note and abstract were not delivered to the defendant Dozier; and that he (Dozier) went away saying that he would return in a few days and see about the matter; but that he never came back while she was there. She further stated that the note was always kept at the First National Bank in a box with the mortgage; that it was never taken out except when the interest was paid, at which time Mr. Lambirth of the bank always indorsed the payment on the note; that for two or three years, when either money was paid or a check given to Mr. Jones at the house, she would always count or examine the same, and they would take it to the bank as soon as possible. On cross-examination she testified, in answer to the following questions, thus:
“Q. You say Mr. Jones never kept or never had a box at his house?
“A. No, sir; he kept his boxes in the bank.
“Q. Did he ever have them at the house temporarily— at the house for a short time?
“A. Once in a great while; there was one time, I believe, he had one brought up for something; I don’t remember what it was.
*57 “Q. You do remember one occasion?
“A. I think one time he brought one of the boxes up or something, but I can’t remember; I can’t remember like I could when I was young.”
“* * That when a party to an action, suit, or proceeding by or against an executor or administrator appears as a witness in his own behalf, or offers evidence of statements made by deceased against the interest of the deceased, statements of the deceased concerning the same subject-matter in his own favor may also be proven.”
It follows that the decree of the lower court should be affirmed, and it is so ordered. Affirmed.