126 P. 1005 | Or. | 1912
delivered the opinion of the court.
The case at bar is not like that of Veasey v. Humphreys, 27 Or. 515 (41 Pac. 8), where the defendant was not a party to the chattel mortgage in question, and had no presumptive knowledge about it. He was the sheriff, and as such had seized certain cattle under a writ of attachment and an execution as belonging to one Douney, the attachment and judgment debtor. Plaintiff brought replevin to recover the cattle, .and alleged the execution to him of a chattel mortgage on the cattle by Douney and Nicholson, as partners. The defendant sheriff answered, denying the execution of the chattel mortgage, and in a further separate defense alleged that Nicholson attempted to execute said chattel mortgage pursuant to a conspiracy to defraud, and without consideration, etc. “It has been held by this court,” says Mr. Chief Justice Bean in Baines v. Coos Bay Nav. Co., 41 Or. 185, at page 138 (68 Pac. 397, at page 398), “that when a defendant denies the execution and delivery of a promissory note, and in a separate defense alleges that it was made with a fraudulent intent, its execution is admitted because the two statements are inconsistent, and as between the denial of a fact alleged in the complaint and a direct admission of the same fact in the answer the admission, and not the denial, will be taken as true.” Later, in Johnson v. Sheridan Lbr. Co., 51 Or. 35, at page 43 (93 Pac. 470, at page 473), Mr. Justice Moore, speaking for the court says:
* It has been held that when an answer denies the execution of a writing, and in a separate defense alleges that the instrument was made for a specific purpose, the defenses are so inconsistent that both cannot stand, and, as the affirmative allegation is the latest expression of the pleader’s intention, it will prevail, and the execution of the instrument is thereby admitted.”
“The degree of diligence which shall be considered necessary, in any case, will depend upon the character and importance of the document, the purposes for which it is expected to be used, and the place where a paper of that kind may naturally be supposed to be found. If the document be a valuable and important one, which the owner would be likely to preserve, a more diligent search will be required than if the document is of little or no value. The purposes for which it is proposed to use it on the trial will also have an important, bearing in determining the degree of diligence required. If the cause of action or defense is founded on the supposed writing, the party offering the evidence will be required to show a greater degree of diligence in the attempt to produce the original than if it is desired to be used as evidence in some collateral matter.”
Without recapitulating the evidence, we think it tends to support the allegations of the complaint, and that the cause was properly submitted to the jury. Under the provisions of Article VII, Section 3, of the State constitution, the verdict should not be disturbed.
Finding no prejudicial error in the record, the judgment of the lower court is affirmed. Affirmed.
Mr. Justice Burnett dissents.