126 P. 9 | Or. | 1912
delivered the opinion of the court.
It is maintained that errors were committed in permitting the defendant’s counsel, over objection and exception, to introduce testimony tending to prove independent collateral matters, not connected with the demand sued upon.
The plaintiff, as a witness in his own behalf, testified in support of the allegations of his complaint, and further in chief, to the effect that he had been associated as a partner with the defendant at Tillamook, Oregon, in the mercantile business; that their enterprise was incorporated in March, 1904, as the McIntosh & McNair Company, with a capital stock of $20,000, divided into 200 shares, of which he owned one-half and the defendant and his wife the remainder; that in March, 1905, the witness was owing the Tillamook County Bank quite a sum of money, to secure the payment of which he assigned to it his shares of the corporate stock; that on July 20, 1905, he sold and transferred to the defendant such stock for $9,200, receiving on account thereof $7,000, the defendant promising to pay the remainder as soon as it could be collected from the debtors of the corporation; that the money so received was paid to the bank, which transferred to McNair the shares of stock, though the witness then owed the bank the further sum of $2,200; that in December, 1905, he received from the defendant a statement of an account against the Mclnto'sh Cheese Company, whereupon he demanded of McNair payment of the $2,200 as the remainder due.
On cross-examination, over the objection and exception of his counsel, plaintiff was required to admit that he was president and manager of the McIntosh Cheese Company, a corporation, which, prior to the sale of the stock referred to, was owing debts, and for its accommodation he indorsed its promissory notes; that the McIntosh & McNair Company had also given a note for the accommo
Without any reference thereto in his examination in chief, the plaintiff on cross-examination, over the objection and exception of his counsel, testified that he never informed the cashier of the Tillamook County Bank what sum had been received from a sale of the stock, nor told him the defendant owed any balance on account of that purchase; and that prior to July 20, 1905, the defendant desired the witness to relinquish, as a part of the transaction respecting the sale of the stock, a personal account of about $700 or $800 against the McIntosh & McNair Company, which proposition was not acceded to.
On re-direct examination the plaintiff further testified that the personal account alluded to was due him as salary, a statement of which appeared on the books of the corporation owing the sum. On re-cross-examination the plaintiff, over the objection and exception of his counsel, was required further to testify concerning the $700 or $800 item, saying the sum was paid by swapping accounts with the defendant. His attention having been called to a letter which he wrote the defendant October 24, 1905, as A. McNair & Co., wherein it was stated: “You can credit Frank Long with one hundred dollars and debit my account. Also credit Ed. Donaldson with the balance of my account and debit me. Send me receipt from each party for the amount” — he was asked:
“Why didn’t you, if you thought at that time that he owed you $2,200 — why didn’t you say, 'excepting the $2,200, the balance of your account?’ excepting that?”
The witness, referring to the defendant, replied:
“Because he knew very well that he owed me $2,200, and he knew I didn’t expect it until about the first of the year.”
The defendant also testified that, having secured some money, he offered the plaintiff for his stock $5,000 and also to pay him the remainder of the money which he had in the corporation, about $900, but the proposal was denied, McIntosh asserting that, considering the profit and loss account as disclosed by the books, he should receive for the entire property, $9,000; whereupon Mc-Nair replied that he could not consider the counter offer, because the sum demanded was too great — the business not being worth that amount.
McNair, referring to the plaintiff’s demand of $700 or $800 against the corporation, was permitted, over objection and exception of plaintiff’s counsel, to testify that such money was the remainder which . McIntosh had put into the business, and that after he sold the stock he drew out on orders the money which he had thus invested.
“Then will you explain to the jury how you, or why you and your attorneys, have put in so much testimony trying to show that Mr. McIntosh was embarrassed and short of money?”
An objection to this inquiry was sustained and an exception allowed.
The deposition of M. W. Harrison having disclosed that he was president of the Tillamook County Bank, parts of his answers to,written interrogatories were, over objection and exception of plaintiff’s counsel, read in evidence in effect that in the years 1904 and 1905 the bank had made many loans to McIntosh, taking as security therefor an assignment of capital stock of the McIntosh Cheese Company and of the McIntosh & McNair Company; that prior to the plaintiff’s sale of the stock referred to he had owed the bank about $10,000, but that upon the receipt of $7,000 from McNair, to whom was assigned the stock of the McIntosh & McNair Company, there remained due from McIntosh, after giving him credit for such payment, $2,302.92. The following question and answer, found in Harrison’s deposition and referring to plaintiff, were, over objection and exception, permitted to be read to the jury, to wit:
“What are the facts about his promising to pay up when the notes were due, and whether he did so?”
“A. He was always promising to pay; he was good at promising to pay, and never seemed to worry any about it when he did not meet his promise, until we were going to force him into a payment. I think that the reason that we had this stock transferred was that he was owing us $10,000, and promised us to pay, and there was a creamery for sale, and he went and bought that in place of paying us up, and then we went and had the stock actually transferred on the books.”
A sense of fairness to the respective parties evidently induced the trial court, in receiving proof of the value of the assets of the corporation at the time of the transfer, in order to show the probability of the price agreed to be paid for the capital stock, also to admit testimony tending to establish the plaintiff’s pecuniary condition at that time, for the purpose of revealing a likelihood that he
Without further adverting to the errors assigned, and complying with the amendment of Section 3 of Article VII of the organic law, the judgment is affirmed.
Affirmed.