59 P. 117 | Or. | 1899
First Case.
delivered the opinion.
This is an action brought by the plaintiff, as receiver of P. Weyhrich & Company, formerly engaged in the manufacture of agricultural implements at Pekin, Illinois, to recover on two promissory notes, for $175 each, executed by the defendant on July 25, 1889, and made payable to the order of Weyhrich & Company, at The Dalles, Oregon, November 1, 1890, and November 1, 1891, respectively. The facts are that in 1889 Mitchell, Lewis & Company, of Portland, were the general agents of Weyhrich & Company in this state for the sale of their machinery, and, as such, made sales thereof through local agents at various points' in Eastern Oregon, among whom were Filloon Brothers, of The Dalles, who on July 25, 1889, sold to defendant certain farming machinery manufactured by and belonging to Weyhrich & Company, taking therefor the notes upon which this action is based. Immediately thereafter the notes were forwarded to Weyhrich & Company, at Pekin, Illinois, and afterwards came into the hands of plaintiff, as receiver, and were by him placed with several banks for collection, but they were never in the possession of Filloon Brothers after being forwarded to Weyhrich & Company. When the notes matured, the defendant paid the amount thereof to Filloon Brothers, and sets up such payment as a defense to this action, alleging that they were at that time, and for a long
Now, there was no evidence given or offered on the trial tending to show that Filloon Brothers had either express or implied authority from Weyhrich & Company to receive payment of the notes in suit, or any general authority to collect notes belonging to them, or that they had been held out to the world as possessing such authority ; but it is sought to show the authority from a custom which the defendant claims to have existed in Eastern Oregon at the time of the execution and alleged payment of these notes, by which, as his counsel states in his brief, “manufacturers of farm machinery sent their wares to their general agents in Portland, who, in their turn, sent them to local dealers in Eastern Oregon to be sold. The local dealers sold the machinery, usually
It is a general rule of law that, if money be due on a negotiable promissory note, it is the duty of the debtor, before paying the same, to see that the person to whom he pays is in possession of the note, and whoever pays without such evidence of the right to make the collection does so at his own risk, unless he can prove that such right actually existed at the time of payment: Smith v. Kidd, 68 N. Y. 130, 138 (23 Am. Rep. 157). A custom or usage such as is claimed in this case would perhaps be sufficient proof of the authority of an agent who had possession of the notes to make the collection, but the admitted facts do not bring the case within the alleged custom. It will be noted that it is one of the essential and controlling facts going to make up such a custom that the note should be returned to the local agents for collection, and there was no evidence given or offered tending to show that under this or any other custom a-local agent for the sale of machinery had a right to make collection of the notes taken therefor in the name of his principal, unless he had them in his possession at the time. Accordingly it was error in the trial court to admit in evi
Second Case.
delivered the opinion.
This is an action upon two certain promissory notes, of date July 1, 1889, executed by the defendant to P.Weyhrich & Company, for farming machinery belonging to them and sold to the defendant by á local dealer at The Dalles. The defense is an alleged payment of the notes in suit to such local dealer, who did not at the time have possession thereof. The facts are substantially the same as in the case of Rhodes v. Belchee (just decided), except that, when the notes upon which this action was brought matured, the defendant executed and delivered to Filloon Brothers, his note for $692.16 in payment of the two notes and other indebtedness due them. This latter note was guaranteed by Filloon Brothers, and by them turned over to Mitchell, Lewis & Company, of Portland. When it became due, it was indorsed by Mitchell, Lewis & Company to French & Company, Bankers, of The Dalles, and was