Peterson v. Thompson

151 P. 721 | Or. | 1915

Lead Opinion

Mr. Justice McBride

delivered the opinion of the court.

1,2. The indorsement of defendants was without qualification, and, therefore, in the regular course of' business, they are liable unless the note had been previously paid or otherwise satisfied: Section 5899, L. O. L. Payment being an affirmative defense, it was incumbent upon the defendants to prove such defense by the preponderance of the evidence: Willis v. Holmes, 28 Or. 265 (42 Pac. 989). "While there is some respectable evidence tending to show that the purchase of the property was made for plaintiff’s benefit and with the understanding that the mortgages upon the property were to be extinguished thereby, we are of the opinion that the weight of testimony is to the effect that the property was bought by Emma B. Thompson with her own money and for her own benefit; and, this being the case, it follows that defendants’ affirmative defense is not established, and the plaintiff is entitled to recover.

3. Error is assigned by reason of the ruling of the court excluding certain testimony offered by defendants, but, as no offer was made to have the testimony taken and incorporated in the record subject to the objection of defendants, under the rule announced in Sutherlin v. Bloomer, 50 Or. 398 (93 Pac. 135), they are precluded from urging the objection on appeal.

The decree is affirmed.

Affirmed.

Behearing Denied.

Mr. Chief Justice Moore, Mr. Justice Burnett and Mr. Justice Benson concur.

---

Rehearing

Denied November 16, 1915.

On Petition eor Rehearing.

(152 Pac. 497.)

Department 1. .Mr. Justice Burnett delivered the opinion of the court.

4. The defendants Harding, who appealed, were indorsers of the note named in the mortgage foreclosed in this suit. They contend that the sale of the mortgaged premises by the administrator of the deceased maker of the note discharged the principal debtor, and consequently released the indorsers, who were only secondarily liable. They endeavor to work out this result exonerating the maker through some correspondence between the attorney for the estate and the attorney for the plaintiff written prior to the sale, which they say proves that its terms included the assumption by the purchaser of the payment of the note and mortgage involved in this suit. Nothing can be derived from this correspondence beyond negotiation. Except the indorsement of the defendants on the note, no writing appears in evidence signed by anyone agreeing to assume or pay the debt of Stovin, the maker of the note. It is not disclosed that the administrator’s deed which is the culmination of the transaction, and in which all previous bargaining is merged, contains any covenant by the grantee or condition imposed upon her looking to the payment of the indebtedness. In short, the legal effect of the transaction was to convey to Emma B. Thompson the equity of redemption remaining in the estate of the deceased maker of the note. While this might exhaust the estate of Stovin, it did not discharge it. It results in a situation where the indorsers must assume their secondary liability. It is a fallacy, then, to argue that the maker was released, and hence that they were discharged.

The petition for rehearing is denied.

Affirmed.

Rehearing Denied.

Mr. Chief Justice Moore, Mr. Justice McBride and Mr. Justice Benson concur.