Martin v. Moreland

174 P. 722 | Or. | 1918

Opinion on the Merits

Reversed and remanded May 20, 1919.

On the Merits.

(180 Pac. 933.)

“in that, the purported note and mortgage was not ‘gilt edge’ and was not well secured; that the property described in said purported mortgage is worthless and valueless and is assessed for the sum' of one dollar, and said defendant Moreland knew at the time he made said representations and statements that the property described in said purported mortgage was worthless and valueless.”

There are further recitals charging a conspiracy upon the part of the several defendants to create a pretended security by the execution of the mortgage without any actual consideration, upon worthless land, for the purpose of defrauding plaintiff, who asks for judgment in the sum of $150, with interest. The defendant Painter demurred to the complaint, which demurrer being overruled, he answered, denying the material allegations of the complaint and pleading affirmatively the gennine character of the mortgage, and asserting its bona fides. A trial was had upon

the issues thus joined, at the beginning of which the defendant Painter objected to the admission of any evidence for plaintiff upon the ground that the complaint does not state facts sufficient to constitute a cause of action. The objection was overruled, and an exception saved. By agreement of the parties the cause was tried by the court without a jury, and there was a judgment for plaintiff, from which defendant Painter appeals.

Reversed and Remanded. For appellants there was a brief over the names of Mr, S. B. Huston and Mr. F. E. Melvin, with an oral argument by Mr. Huston. For respondent there was a brief and an oral argument by Mr. Charles J. Swindells. BENSON, J.

2. The first and most important assignment of error is the one which attacks the sufficiency of the complaint. It will be observed that the complaint contains no allegation to the effect that the defendant Schmidt, the maker of the note, is insolvent or irresponsible, and all that is said in regard to the value of the note is, that it is not “gilt edge,” and was not well secured. The term “gilt edge,” as applied to commercial paper, is a colloquialism, and its meaning, as given in the Standard Dictionary is, “of the best quality, or highest price; first class; as, gilt edge securities.” This, obviously, does not imply that a note which is not “gilt edge” is not collectible, or that the maker is irresponsible. For all that appears in the complaint, the maker of the note may have been amply able, and perfectly willing to pay the face of the note with accrued interest at maturity.

3. It requires no citation of authorities to support the doctrine that a litigant is not entitled to recover damages unless he has suffered some injury, and it follows that the demurrer should have been sustained.

A motion to dismiss the appeal was submitted and denied (Martin v. Moreland, ante, p. 61 (174 Pac. 722), and was again called to our attention at the time of argument upon the merits. We have again examined the record and find that the motion is without merit.

It may be that the facts will justify an amended complaint, but that is a subject for the consideration of the trial court. The judgment is reversed and the case will be remanded for further proceedings not inconsistent with this opinion.

Reversed and Remanded. Rehearing Denied.

i McBride, C. J., and Burnett and Harris, JJ., concur.

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Lead Opinion

McBRIDE, C. J.

Under the provisions of Section 550, subdivision 4, L. O. L., the appeal was perfected on January 19,1918, this being five days after the last undertaking was filed. The appellant then had thirty days within which to file his transcript in this court, which time would have expired on February 18, 1918. The extension was granted on the sixteenth day of February and was, therefore, two days before the expiration of the period allowed by law. The transcript was filed here on March 15, 1918, and was within time.

Motion Overruled.