66 P. 443 | Or. | 1901
delivered the opinion of the court.
The rule being thus settled, it becomes necessary to examine the pleadings to determine the material issues to be tried. The answer does not deny that the defendant is a corporation, or that no part of said note has been paid, and the reply fails to deny the allegation of defendant that Greenfield and Du Buisson were its president and secretary, and admits that the note sued on was made to take up a prior note to the Pacific Drill Chuck Company. These averments of fact not being in issue, no findings of the court were required to be made thereon: Fink v. Canyon Road Co. 5 Or. 301; Luse v. Isthmus Transit Ry. Co. 6 Or. 125 (25 Am. Rep. 506). The material issues of the complaint, therefore, are that the defendant made and delivered to the plaintiff its promissory note, and that $50 is a reasonable sum as attorney’s fees. If the defendant could show that Greenfield and Du Buisson, as its president and secretary, had no authority to execute the note sued on, evidence of that character would constitute a valid defense, unless it further appeared that the note had been assigned, before maturity, to an innocent purchaser, for a valuable consideration: Mechanics’ Banking Assoc. v. New York & S. W. L. Co. 23