167 P. 598 | Or. | 1917
Lead Opinion
delivered the opinion of the court.
There is a large number of assignments of error but the greater number of them involves but one question which may be fairly stated thus: Does plaintiff’s affirmative defense, as set out in the reply, involve admissions which defeat the causes of action as set out in the complaint? Defendant urges that the allega
“These debts were assigned to me on January 2, 1913, and on February 15, 1913, I notified the defendant of my ownership and demanded payment.” •
The defendant answers:
“I deny the assignment, and deny any notice thereof. I paid these claims to plaintiff’s husband A. J. Pennings, on March 20, 1913. At that time we had a settlement of our accounts as a result of which A. 'J. Pennings admitted that he was indebted to me in certain sums sufficient to absorb the $500 in controversy, and authorized me to apply the money in my possession to the payment of such debts which I did.”
The clear effect of plaintiff’s reply read in the light of the complaint, is:
“It is true that the claims sued upon were assigned to me before March 20, and that I notified the defendant thereof,- but, if the jury should happen to discredit my evidence upon that issue, nevertheless, defendant’s plea of settlement ought not to prevail, because the instrument upon which he relies to support that defense was based upon a parol agreement upon his part to perform certain acts which he has failed to perform and A. J. Pennings has rescinded the contract.”
“As a matter of evidence, an inference may have but slight force or effect. It may only be more or less persuasive and entirely inconclusive, and still it may be considered, since it is evidentiary merely. In pleadings, however, the inference, to be availing must stand as and for an ultimate fact, and therefore must be clear and certain.”
Defendant further insists that the affirmative matter in the reply discloses that the causes of action declared upon in the complaint have been discharged by a subsequent and independent contract, and that if plaintiff has any remedy it lies in an action for the breach of the later agreement. This contention is based upon the theory that the reply recites a contract wherein the covenants to be performed by the defendant are independent of the release signed by A. J. Pennings and his associates on March 20th, and that, therefore, a failure by the defendant to organize and finance the new company as agreed would not relieve Pennings from his obligations under the written instrument referred to. It must be borne in mind that the alleged contract is in writing so far as it binds Pennings; but, as regards the things to be done by Giboni, it rests in parol. From the recitals in the reply it appears that it was agreed that if Pennings and his associates would agree to the disposition of the $500, as proposed by Giboni, and would pay certain other obligations which they were not legally bound to do, he would unite with them in the organization of a company in which they were to be shareholders; and
“There is no arbitrary test by which the question can be determined. The old decisions turned upon a technical construction of the language used, but the modern doctrine is that a contract should be construed according to the meaning and intention of the parties. It is unnecessary for us to make special reference to the several rules upon the subject or the various decisions of the courts. It is sufficient to say that, in the absence of very clear indications to the contrary, promises each of which forms the whole consideration for the other, will not be held to be independent of one another, and the failure of the party to perform on his part will excuse the other from liability to perform. ’ ’
.
"The court instructs you that the promissory note or due bill, as set out in paragraph 1 of plaintiff’s complaint, is a non-negotiable instrument and subject to any and all defenses that the defendant would have had against the original owner, and this applies to the claim of One Hundred Dollars, as set out in the second cause of action.”
It was properly refused for the reason that it is misleading, in that it does not limit the available defenses to those that were in existence at the time defendant had notice of the assignment: 2 R. C. L., p. 629, § 39.
‘ ‘ The court instructs you that in regard to this allegation by plaintiff that this receipt or settlement of accounts had on March 20, 1913, was procured by certain promises of the defendant is to be wholly disregarded by you and not to be considered by you in arriving at your verdict.”
Defendant founded his request for this instruction upon a certain judgment-roll which, apparently, had been offered and admitted in evidence and contends that it conclusively establishes the fact that A. J. Pennings, at the time of the alleged settlement, was personally indebted to defendant in the sum of $4,300. There is no judgment-roll in the record, neither is there any identification of this or any other exhibit in the certificate of the trial judge nor even in the certificate of the official stenographer. It follows that this assignment cannot be considered: Coach v. Gage, 70 Or. 182 (138 Pac. 847).
Rehearing
Rehearing denied October 16, 1917.
Petition for Rehearing.
(167 Pac. 1014.)
On petition for rehearing. Rehearing denied.
Messrs. Lewis & Lewis, for the petition.
Messrs. Baffety & Teach, contra.
Department 2.
Opinion by
Notwithstanding the argument presented by counsel in their able brief upon the petition for rehearing we
Counsel for defendant intimates that there are equities in the case that will justify a very technical construction of the pleadings as against the plaintiff, but upon a careful review of the case we are of the opinion that the verdict not only accords with the law and the testimony but with abstract justice as well.
We adhere to the original opinion, and the petition for rehearing is denied. Rehearing Denied.