43 P. 719 | Or. | 1896
Opinion by
1. It may be premised that this is not an action upon the note executed as evidence of the indebtedness, but, disregarding the note, plaintiff sued for the money loaned to and received by the defendant and in this he is supported by settled law. Black v. Sippy, 15 Or. 574, (16 Pac. 418,) is a case wherein it appeared that goods were sold, delivered, and charged to the husband, who, upon a statement of account, executed and delivered his note for the amount found due, which was assigned to plaintiff, who sued the wife upon the account for family supplies, and the action was maintained. In passing upon the complaint, Lord, O. J., says: “Nothing is better settled than that accepting a note is not payment of an account, nor is accepting one note in renewal of another payment of the old note, unless there is an agreement that the note should be accepted in payment.”
Now, to the main question. Although there is some conflict in the authorities, it has been maintained and settled in some jurisdictions that, while a corporation is not bound by engagements made for and in its behalf by its promoters before it has been duly organized, it may, after its organization, make such engagements its own. This it may do in manner and form and precisely as it may make similar original contracts. A formal action of the
8. When the plaintiff had rested his ease, the defendant moved for a nonsuit, which the.court denied, and this is assigned and relied upon here as error. This involves to some extent a review of the»' testimony offered and admitted in support of the action. The answer puts in issue many of the material allegations of the complaint, but we take it that this much is admitted, — first, that Robinson, Brum?* field, and Dunbar were the principal stockholders of the corporation; second, that Robinson was at all times its secretary; third, that John Hallinan may have been’ its managing agent on the eighth day of April, eighteen hundred and ninety-three, and much if not most of the time since; and, fourth, that defendant had a corporate existence at some time since April eleventh, eighteen hundred and ninety-three. Before the trial, and in due time, defendant was notified in writing by plaintiff to produce for his use as evidence at the trial a receipt given by plaintiff to defendant for one hundred dollars about May third, eighteen hundred and ninety-three, the surrendered note, the records of the meetings of de
4. The testimony further shows that plaintiff became acquainted with Hallinan in September,
5. It is next claimed that the court erred in refusing to allow Hallinan, upon cross-examination, to answer the following question, namely, “Now, you were asked about some receipts for some money which you paid, the attorney said, to the plaintiff Schreyer; now you may state how you came to pay
6. The witness was further asked, upon cross-examination, the following questions, namely, “I will ask you if in taking up that old note which the attorney called your attention to, which you say you forwarded to Robinson in Portland, if you did so as the agent of Robinson, Brumfield, and Dunbar, and not as the agent of the Turner Flouring Mills Company?” “Did you act in the capacity as agent or president of the Turner Flouring Mills Company, the defendant in this action, in the matter pertaining to this Schreyer note sued upon?” To which an objection was made as not proper cross-examination, and sustained by the court, and such ruling is assigned as error. The same answer is applicable here as to the preceding assignment. The witness was only asked in chief to produce the old note. He was not interrogated as to the consideration, or as to how or for what purpose it was executed. So
Another error is assigned which is predicated upon the court’s admission in evidence of several exhibits, consisting of letters written to plaintiff from time to time by Dunbar and Robinson, concerning the money which is the subject of the action. Borne of these letters were written upon the letterheads of the Turner Flouring Mills Company, but the context of all were more or less concerned with the money transaction about which the controversy arose, and we think for this reason, if for no other, the exhibits were admissible. This disposes of all the objections maintained here, and the judgment of the court below will be affirmed. Affirmed.