Kelsay v. Taylor

107 P. 609 | Or. | 1910

Mr. Justice McBride

delivered the opinion of the court.

1. The demurrer to the further and separate defenses was properly sustained. There was no tender of the amount due, and the plaintiff was not bound to receive less than the full amount. In addition to the amount tendered, which was the exact principal and interest due on the note, plaintiff had incurred a liability of $10, the fee required by law to be paid the clerk upon filing the complaint.

2. Some contention seems to be made in defendants’ brief that the action had not been commenced because summons had hot been issued when the tender was made, but this contention is answered by Section 51, c. 5, B. & C. Comp., which read as follows:

“Actions at law shall be commenced by filing a complaint with the clerk of the court, and the provisions of Sections 14 and 15 shall only apply to.this subject for the purpose of determining whether an action has been commenced within the time limited by this Code.”

3. The provision in the note, making it payable at the bank of French & Co., did not make that bank the agent of the payee to receive the money unless they actually had possession of the note when the money was sent, which, in this case, it is conceded, was not the fact.

4. French & Co. were, by Taylor’s letter of instructions, made the agents of the sender, to find the holder of the note and pay the money. As the tender was insufficient and the money was refused it remained in their hands, as such agents, subject to the orders of the sender. Being rightfully refused by plaintiff, Wilson’s assignee had a perfect right to garnish the bank, and, if necessary, try out the question of the ownership of the money. The latter course was obviated by the bank admitting that the money was the property of O. D. Taylor and paying it over to the sheriff.

5. Conceding that Wilson’s assignee was in no better situation than he himself would have been, we do not see how the fact that Wilson was the attorney for plaintiff in the foreclosure suit could possibly bind her 'in proceedings taken by him on another and different judgment not in any way connected with that in which he was her agent. In attaching the money Wilson was not acting for Mrs. Kelsay, but for himself or his assignee in a matter entirely outside the scope of his employment by plaintiff; nor is it charged that she in any way participated in any scheme to enable him to unlawfully seize upon Alma Taylor’s money and apply it on O. D. Taylor’s debt.

6. Neither Wilson nor Skene are parties to this suit, and the court could make no valid order herein that would bind them or be conclusive upon them as to the ownership of the money.

7. We do not think the variance in the description of the note material. The complaint does not attempt to set up the note haec verba, but only alleges that “the following is substantially a copy” of it. Now the words “substantially a copy” do not import that the exact language of an instrument is given, but only its material and necessary parts, and negative the idea of exact verbal accuracy: Thomas v. State, 103 Ind. 419 (2 N. E. 808); Edgerton v. State (Tex. Cr. App.) 70 S. W. 90. The complaint alleges that the mortgage is recorded at page 449, vol. W, Records of Mortgages of Wasco County. The intent of the suit, and that which gave a court of equity jurisdiction to entertain it, was the foreclosure of the mortgage. It is plain that the defendants could not be, and were not, misled to their prejudice by the omission complained of. The relief would be just the same, the measure of the rights of the parties would be the same, with or without the omitted words. Section 97, B. & C. Comp., is as follows.

“No variance between the allegation in a pleading and the proof shall be deemed material unless it shall have actually misled the adverse party to his prejudice in maintaining his action or defense upon the merits. Whenever it shall be alleged that a party has been so misled, that fact shall be proved to the satisfaction of the court, and in what respect he has been misled; and thereupon the court may order the pleading to be amended upon such terms as may be just.”

The court could perceive at a glance that the defendants were not and could not have been misled as to the exact mortgage that plaintiff was seeking to foreclose, and that from the record referred to in the complaint they had ample means of informing themselves before the trial, not only of the exact terms of the mortgage, but of the contents of the note as well, and that nothing in the omitted words could possibly have affected any defense that they might have desired to interpose.

The decree of the lower court is affirmed.

Affirmed.