Scott v. Platt

rehearing 11; April 6; May Argued January denied affirmed May stay application 25, of execution denied PLATT SCOTT (2d) 975) (135 (2d) 769, P. P. Acting Justice,

Before Chief Rossman, Belt, and Hay, Associate Justices. Brand Kelly, Lusk, (Platt, Henderson, Henderson, of Portland Wilber brief) appel- Cram, Portland, & on the Warner lant. Prendergast, Weinstein, and David both Jr.,

W. J. brief) (Leo of on the Levenson, Portland, of Portland respondent. for in-

This on four matured action to recover terest-bearing executed under date of June bonds ap- and Harrison G. Platt and the defendant pellant, sued, Eobert Treat Platt. Both makers were only but the defendant, Platt, Eobert Treat was served appeared. Judgment in a with summons or trial be- jury against fore court and without went him, appealed. he has following

The bonds are form: “Number M 31 Number M 31

UNITED STATES OP AMEEICA

STATE OF OEEGrON

PLATT BUILDING FIEST MOBTGAGE SIX AND PEE ONE-FOUETH CENT TWENTY YEAE SEEIAL GOLD BOND G. AND “HAEEISON PLATT, PLATT AT EOBEET TEE acknowledge value received, them- selves each of themselves to be indebted to the bearer the sum of

ONE THOUSAND DOLLARS ($1000.00), sum the said Harrison G. Platt hereby and Eobert Treat Platt each of them promises pay registered, to bearer, or if registered holder of bond, this at the of office Title Company City and Trust gon, in the of Portland, Ore- day hereinafter called on ‘Trustee’, the First together of June, 1936, with interest thereon at the per per rate Six and One-Fourth cent annum payable semi-annually from June at the Oregon, office of said Trustee in Portland, on the days year, First of June and December of each coupons surrender the interest hereunto they severally attached as mature. principal “Both interest above men- only gold payable are tioned in present coin the United weight of America of States standard of money equivalent in or its lawful of fineness, and deduction America, of without the States United charges any Governmental which tax or taxes or any present may imposed thereon or future be any State, or America, of law of the States United County Municipality therein, and which said or Robert Treat Platt or Trustee G.Platt and Harrison may required permitted pay or or to to deduct be except or therefrom Estate Inheritance or to retain of Robert and Taxes on the interest this Taxes Income G. Platt and but the said Harrison bond, pay the normal Federal Income Treat Platt will exceeding upon Tax Two said interest not rate of may per per (2) annum, cent which become by any payable States holder hereof to United Congress. any existing of Act or future under redemption subject at to call and This bond is option said Harrison G. Platt and Robert Thirty (30) upon days’ Platt Trustee on written notice Treat payment interest date before to the maturity in the time and manner fixed and at its provided upon the terms in said the rate and deed May prior Midnight 31, trust. If called to of 1930, maturity, this and before its fixed bond shall Hundred and be at One Two One-Half redeemed per (102%) its face with value, centum of accrued Midnight May If after interest. called maturity, bond shall and its fixed this be before (102) per Two Hundred centum redeemed at One accrued interest. face value with This bond of its M 1 M is one of series numbered to both I) D 123, inclusive, 1 to inclusive, both and inclusive, except both of like tenor as C to C maturity principal and dates of their amounts to serially maturing bonds and rate of said interest, twenty years respective after date, from two maturity principal amounts of all of mortgage dates -of being forth in the set deed said bonds of trust herein referred aggregate to, amount being principal sum One Hun- of said bonds ($175,- Seventy-Five Thousand Dollars dred 000), the whereof whole and interest are secured mortgage a first or deed of trust of even date herewith executed the said Harrison Platt Gr. and Robert Treat Platt Trustee, hereby reference is made for the statement conveyed property to the Trustee, the extent of the security, of the holders of said bonds and the conditions which said bonds are is- pass by delivery reg- sued. This bond shall unless istered the owner’s name the books of the provided said Trustee in the manner said mort- gage registry, trust; or deed of such however, shall negotiability coupons not affect the of the hereto attached, which when due and detached from this by delivery. bond shall continue to be transferable any obligatory purpose This bond is not for until Trustees’ certificate endorsed thereon shall signed by have been said Trustee. “Documentary Stamps Internal Revenue in the required by properly

amount law cancelled are at- securing tached to recorded deed of trust this issue.

“IN WITNESS WHEREOF, said Harrison O. Platt and Robert Treat Platt have hereunto sub- scribed their names and have caused their fac- signatures placed upon simile to be the attached coupons day on this First of June, 1925.

“(Signed) HARRISON GkPLATT “(Signed) ROBERT TREAT PLATT” The defendant in his answer, after certain ad- allegations complaint, missions and denials of the up following in substance set facts an as affirma- plea tive answer abatement: On June 1, 1925, Platts and Title and Trust Company, corporation, made and executed an inden- duly ture which County, was recorded in Multnomah Oregon, on June 1925, and the terms of which mortgagors, conveyed as Platts, to Title and Trust

Company, security payment as for Trustee, indebtedness the sum of evidenced $175,000, be mortgagors, ninety-nine year bonds of the leasehold property city interest certain real in the together building Portland, with the erected thereon, personal property building, certain in said and the rentals from the tenants thereof. Section of Article V of the indenture reads: any coupon “No holder of bond or secured

hereby right any shall have the to institute suit, proceeding equity action or either at law or in the foreclosure of instrument, this or for the execu- any power tion of appointment trust or hereunder, or for the possession of a receiver to take properties hereby, any embraced or for other remedy pre- whatsoever, unless such holder shall viously given have to the Trustee written notice event of nor default, unless he also shall request upon have made written Trustee, opportunity shall have afforded it a reasonable proceed power either to to exercise the hereinbefore granted proceed or to in its own name either at law equity, or in nor unless such holder or holders shall offer to the Trustee reasonable and in- demnity against expenses the costs, and liabilities to be in incurred or reason of the action con- templated neglected and the Trustee shall have comply request with such within a reasonable time request thereafter. Such notification and are de- precedent clared to be conditions to the execution powers and trusts of this instrument, it being hereby provided understood, intended and coupons that no one or more holders of bonds or. hereby any right secured shall have in manner whatever his or action their to affect, disturb prejudice or the lien of this indenture or to enforce any right except hereunder in the manner herein provided. In the event of the refusal or failure of an the request to act after event of default and trustee indemnity provided, act and as herein not then and otherwise the holders of not less than twenty-five per outstanding cent of the bonds then shall be authorized to institute foreclosure other legal proceedings. proceedings All which shall be lien instituted to enforce the of this instrument equal for the of all shall be outstanding benefit holders of such ’’ coupons. bonds and Simultaneously execution of indenture with the upon, together sued the bonds with the Platts issued except principal like as to their tenor, others of maturity and amounts and dates of rates of interest, aggregating an in all indebtedness the amount of approxi- which bonds in amount of $175,000, of outstanding. mately plaintiff, are The it is $143,800 complied alleged, prec- with the conditions has stipulated institution edent to the action in 2 Article Section of Y of the indenture above set forth, twenty-five per and is not the owner of cent outstanding. bonds plaintiff

The demurred affirmative answer plea and the abatement, court sustained the ruling principal, demurrer. This is the basis of the only assignment and, case, as we view of error for discussion. which calls question The

LUSK, J. for decision is whether provisions of Section Article Y, of the indenture, plaintiff bind the so as to him bar maintaining from personal judgment this action at law to recover a against the defendant bonds owned and held plaintiff long since principal default as to being it plaintiff interest, conceded that the has requirements not met the of that clause. These re- bringing a suit in quirements in that before are, brief, proceeding, equity, a at or other bond- law, action give first notice the trustee written of holder shall request written and reason- a default, an event proceed opportunity at trustee to law or the able to equity and that he offer name, in his own shall indemnity against security and the trustee reasonable expenses incurred and liabilities to be costs pro- contemplated action. It is further the reason of failure or in the of the trustee’s re- vided that event twenty-five the than act, holders of less fusal join per outstanding the then must cent of bonds legal proceedings. institution of foreclosure or other the stating views what we deem Before our controlling in the notice will case, consideration be plaintiff’s an in the brief that assertion taken any security prove failed is now there defendant that in fact lease indebtedness, the bonded for been has forfeited. constituted problem fact would be com- us our Were this before simple, spared futility paratively would and we be question, mortgagors passing a moot Article in Section V, indenture, have said setting precedent forth the conditions to suit or after action: provided “* * ^[*] that no one or it being understood, more holders of bonds or intended and hereby hereby any right

coupons shall have secured by his or their action to affect, whatever manner prejudice the lien of indenture, or this or disturb any right except hereunder in the manner to enforce provided.” herein Assuming at the least debatable —what single proposition at action law bond —that prejudice disturb the lien of affect,

holder would Corpo mortgage (see and Law of Fisher, McClelland Mortgage and cases cited in note Issues, 137, Bond rate any security longer 92), yet, obviously, no if there is prejudiced. disturbed or affected, there no lien to be a entitled event there be trustee Neither in that would opportunity to sue, of a reasonable default, to notice indemnity against cost, and an offer of be and the as indenture, In there would no short, etc. render the limitations on sumed state of facts would they may right include, sue, to whatever functus ninety-nine year assume that the But cannot we officio. security for the bonds, has ceased to stand as lease proving as fact, think that the burden we stipulations comply for failure to with the an excuse applicable Section Article Y—if otherwise —is Craig, plaintiff. v. West Public Service Co. Central (C.C.A. 8) (2d) Fed. Rodman v. 427, 434; 70 Richfield (2d) (C.C.A. 9) 244, 251; 66 Fed. Home Mort Co., Oil (C.C.A. Ramsey, 4) (2d) gage 49 Fed. 738; Co. Harvey Light Corp., Supp. 3 Fed. v. Illinois Power & 491. judicial can

Neither we take notice the facts claimed to have been established Title & Trust v.Co. (2d) (2d) P. Durkheimer, 155 63 64 P. Or. parties: a that was cause between other 834, since (2d) 69 P. Oden, 73, 76, 157 Or. Oden on the of bondholders, Restrictions some- imported clauses,” “no-action times called into the agreement, therein to collateral bonds reference mortgage, frequently usually have come before the See, inharmonious results. Annotation courts with 108 Rev. 33 Mich. L. 443; A. 27 Col. L. Rev. 88; 604; L. R. Yale L. J. John Marshall 679; 810; Pa. L. Rev. particularly B. A. courts, 8 Duke J. 93. Some L. Q. disposition to construe manifest a courts, the federal bringing provisons into con bondholders such as so that individual another, one with relations, tractual pursuing may prevented be “from bondholders harassing and thus their action, individual course of provided jeopardizing the fund common debtor, Co., Allan v. Moline Plow benefit”, for the common (C.C.A. (2d) 8) as it has been other 912; or, 14 Fed. put, inclination the so as “to restrain wise might minority, an individual have at a holder, issuing in the financial affairs of the critical moment majority might agree leniency, corporation when upset apple 2 Jones, Bonds and Bond cart”, taldng § hand, 811. the other courts Securities, 289, On contrary being the view have been accused of too rights of the bondholders, solicitous made criticism was of one court’s decision in favor of right an individual action at law that “the real arbitrary rigid rationale for the court’s construc perhaps might tion of the bond reference lie prevalent the courts, desire of because of the economic grasp times, even stress minutiae the en deavor to favor holders of bona bonds of default fide ing corporations.” referring L. 88 Pa. Rev. 680, Wengler Mandell, 358 Ill. 302, 193 Oswianza & N. E. passing It should be observed in that the fact that by per- the bonds here sued were issued natural by corporation, way and not a sons in no course, the matter. affects question in thisc

The lass of cases is whether provisions properly the restrictive construed are in prevent individual tended to actions at law whether they merely circumscribe the of the bondholders respect by afforded the collateral with agreement. question may That involve consideration language both of collat- of the bond and that of the agreement; always eral but it must first be determined by appropriate provisions, whether the bond itself, gives adequate right notice to the holder that his to sue provisions at law is curtailed instru- of another inquiry ment. If it It not, does there the ends. question, interpretation as we lan- it, view of the guage, upon which the call aid court should to its ordinary applicable may, rules of construction; object may supposed indeed, consider the it be accomplished by parties, was intended to be but by any should not be influenced unwarranted interest defaulting in the fortunes of a debtor on the one hand may or the necessities of a bondholder on the other. It good public policy be upon unity to insist of action put bondholders, but, an unless investor is on notice that that is one of the conditions of his contract, persuaded we are not that a court should visit consequences policy. him the of such a general pro

As a rule, and in the absence of a hibitory express stipulation statute or an to the con trary, may independ individual holder maintain an corporate coupon ent action at law on a bond or if it is paid maturity, though at even it is secured mortgage containing general provisions or trust deed for a mode of collection or foreclosure in case of de Corporations, fault. 13 Am. Jur., 851, §863; Kimber Mining Milling v. Gunnell & Co., Fed. A 137, 138. general mere mortgage reference in a bond to a secur ing payment incorporate its will not suffice to into the mortgage bond upon restrictions contained in the the right bring common law of the holder to action Ry.A.M. Minn. Ste. & v. S. default; after it Guilford Rep. 694; Am. St. 51 N. W. 48 Minn. Co., Milling supra Mining Cf. Co., & Kimber Gunnell (N. S.) L. R. A. Page 131 P. 1013, 45 Ford, 65 Or. contrary, the bond 1048. On the 1915A, Ann. Cas. mortgage apt language, in refer to the must, itself bring way that re notice to the holder home as to such provisions found in character are to be of that strictive object, accomplish mortgage. such references To this the ambiguous, may must either ex or but not be obscure necessary implication by pressly to the clause refer re and doubts and uncertainties will be limitation, put against prepared and the the one who out solved holder thereof. bond and favor obligation “A consists of a direct bond payment issuing corporation to the holder money by corporation to the holder of a sum of subsidiary and in the holder the co-exist- and vests mortgage rep- ing of a lien benefit of the issuing by the indenture made between the resented corporation It and the trustee. would seem logically, payment in the bonds covenant of bondholder, be enforceable while the should mortgage security represented should be in the first instance the trustee. enforceable right fundamental a bond is “Such to sue away by high im- of too a character to be taken given simultaneously plication mortgage from a security of the bonds. It can be for the better done only by express directly prohibiting statement right and limitations on the bondholders’ sue, prevent right to foreclose will not be extended to at law an action on bonds.” McClelland and Corporate Mortgage Fisher, Issues, Bond Law right normal of an owner of bond in “That subject by implication to destruction default is legal to exist as a incident of the continues but

393 promise language unless there is definite to the contrary incorporated in the bond, or which is by the bond reference to another instrument in so way plain part that the restriction is a of the Dunham v. & bond itself.” Omaha Council Bluffs Ry. (C.C.A. 2) (2d) 106 Fed. 1. Street Co. § to the same effect: 13 Am.

See, Jur. 11 851, 863; § Corporations, J. Stevens on S., Bonds, 466, 99; C. Realty § v. 763, 189; Co., Reetz Pontiac 316 Mo. 1257, 293 S. W. Bartol v. The 382; Gottlieb-Bauernschmidt- Brewing Fleming 129 Co., Straus Md. 98 Atl. 32, 286; R. Co., v. F. & M. R. 72 W. Va. E. 835, 79 S. 826, 49 (N. S.) Cunningham R. A. Ann. 155, L. Cas. 1915D,978; App. v. Co., Pressed Steel Car 238 Div. 624,265N. Y. S. Y. N. aff. 263 N. 189 E. 671, 750; Halle v. Van Siveringen Corp., 37 Del. 185 Atl. 236; Florida Bank v. National Standard Ins. Co., Jefferson Life 123 Fla. So. 125 Fla. 525, 167 378; Id., 386, 169So. 729, L. R. Brandon, 108 A. Enoch v. N. 77; 249 Y.

N. E. v. 45; Co., Bullowa Thermoid N. J. L. 205, Manning Ry. 176 Atl. Southern Co., 29 Norfolk Realty Mortgage Corp., Fed. 838; Mendelson N. Mich. 241 W. be determined,

It must first therefore, whether the mortgage reference to the the bonds here sued sufficiently explicit is to meet the test of these au- unqualified promise thorities. Each bond contains money pay day on a sum named followed aggregating that it is one of a the statement series principal $175,000 sum of “secured a first mortgage deed of trust of even date herewith exe- said Harrison Platt Gr. cuted Robert Treat hereby to which Trustee, Platt reference is made property conveyed for the statement security, the extent Trustee, the condition holders of said bonds ’’ are issued. said bonds language given of that sort The effect to be p. ibid., 138: Fisher, in thus stated McClelland merely by provisions refer their “If the bonds property mortgage description for a mortgaged, and extent of the the nature rights parties, a reference does and the not such inquiry put as the bondholder to limiting mortgage of conditions in the existence right at his bond his after to maintain an action law a non-payment. Accordingly, provision of the brought mortgage to the effect that no action can be by mortgage lien the bondholders to foreclose any rights prevent thereunder will not or to enforce by principal the bondholders for of and an action upon corporate interest was to the promise.” bonds since the bondholder provisions referred of the bond itself

restrictions on his otherwise unconditional following Supporting most view are the cases, this plaintiff: v. cited Enoch of which have been Cunningham supra; Pressed Steel Brandon, v. Car supra; N. N. E. Brown, 190 Y. 82 Co., Hibbs v. Lloyd, Perry 150 Misc. Norddeutscher 268 1108; v. Co., 146 Misc. 525; N. Y. Lubin v. Pressed Steel Car S. Depositors Corp. 433; N. Y. S. Guardian v. 462, 263 Mills, Inc., Flour 291 Mich. 289 N. David W. Stott Railway Equipment Co., Keith Ill. v. 248 122; Weber Sweringen Corp., supra. App. Halle Van 258; holding the reference clause insuf- cases Other fully plaintiff’s sustain the cannot be said to ficient position, reference, the holder of the because, specifically directed to under the col- is bond

395 agreement lateral rather than under the bond: General Interborough Rapid Investment Co. v. Co., Transit App. Michigan Div. N. Y. 794, 193 S. Brown v. 903; Co., R. 124 Misc. N. Y. 630, 207 S. Bank 630; Cali City v. National Co., Wash. P. fornia Wengler while the ease of Oswiansa v. Mandell, & supra, “subject where clause in the bonds made them provisions to” all the of the trust deed “with the same effect as if said trust deed were herein set forth”, went deciding much further that the bondholder was not put provisions on mortgage notice of the affecting in the right bring his an individual action on the bond than necessary go Cummings this case. See, also, Michigan-Lake Building Corp., App. Ill. question

In some of the cases the was whether the negotiable being bonds were instruments, it contended mortgage that a reference to a was effective to in- corporate provisions in the bonds contained in the mortgage unqualified promise conditioned the pay thereby destroyed negotiability. to and ques- The tion in sufficiency cases, these as here, was as to the of put the words of in reference the bond to the holder They on notice of such conditions. are therefore au- thority leading for our consideration. The case is supra, Enoch v. Brandon, where the court, sustain- ing negotiable passed the character of the bonds, following provision the referring effect of the to a mortgage which the bonds were secured: n ‘‘ hereby To which reference is made for a description property mortgaged of the pledged, and security, rights the nature and extent of the the respect the holders of the bonds with thereto, the may given manner in which notice be to such holders, and the terms and conditions under which said bonds are issued and secured.” stating meaning

The after “where the court, is adopt favor- the construction most doubtful, we must bondholder”, to the able said: hold that there is no modification “We here explicit promise pay, The to made terms. mortgage. provisions all have to do the trust with They rights upon the to the conferred it refer rights. explain and and those bondholders limit They together that the are so linked as to indicate security. pur- obligor solely speaking A was scanning the same chaser, thought. November the would have bonds, that, him when It would never occur to something 1, 1941, arrived, because might mortgage contained in the he be unable to interpret him. He collect the amount due would by, that were and the statement the bonds secured subject provi- the entitled to the benefits sions to mortgage, meaning that a fore- as of, might be or other relief had thereunder closure only subject provisions. its He to would see that also to to it is made determine the terms reference under which the bonds are and conditions issued Again, mean him, it would to as it secured. by turning only mortgage us, that to the to means might precise nature of the he discover lien He would see is obtain. bonds were he general only upon be issued, credit corporation, but the faith of some col- go, mortgage. it must To he if lateral further knowledge as to this desired.” Turning cited now to cases defendant, it are suits to noticed that some first be should enforce mortgage arising under indenture with may security, they put respect be out of question bearing us. on the before as without view Craig, v. Service Co. Coast Public Central West See, Light supra; Corp., Harvey supra; Illinois Power & v. McGeorge Big Gap Improvement 57 Fed. Co., v. Stone supra; Co., Rodman v. Oil Title & Trust 262; Richfield Security Buildings Corp., v. 277 P. Co. Or. Electric Edison Electric 85; General Co. LaGrande (C.C.A. 9) Fed. Co., 590. distinguishable

There are other cases because reference clause is so worded as either to embrace clearly provisions all the of the collateral instrument, “subject as where the bond is made to” the condi mortgage, tions and terms of the Muren v. Southern Mining App. Co., Coal & 177 Mo. 600, 160 S. W. 835; Angus, Colony 95, 118 Hull v. 60 Or. P. 284; Old Trust Stumpel, Lidger Co. v. 247 N. Y. N. E. 173; Mfg. (D. C.) wood v. (2d) Co., Hale & Kilburn 47 Fed. express 318; because reference clause, terms, ambiguity, specifically free from indicates the existence respecting right of conditions of action on the distinguished bond itself security. as from the Allan v. supra; Moline Plow Co., Crosthwaite v. Moline Plow Craig Co., 298 Fed. 466; Corp., Consolidated Cement (C.C.A. 10) (2d) 69 Fed. 613; Dunham v. Omaha & Ry. (C.C.A. 2) Council Co., Street (2d) 106Fed. Bluffs 1; Collier v. E. C. Miller Cedar Lumber Co., 13 Wash. (2d) (2d) Moody 201, 124P. Steamship v. Pacific (2d) Co., 174 Wash. 24 P. 609. Railway

Barker v. Utah-Idaho Central Co., 57 support 494, 195 Utah P. does not the defendant’s position because the decision was based a statute prevented prior which, effect, action to foreclosure obligation by mortgage upon secured real or personal properties. § § Compiled See, 7230,7231, Laws Utah Security Buildings Corp.,

Title & Trust Co. v. supra, specially is relied on the defendant. The reference clause there read: description property mortgaged,

“For a rights the nature and extent of the of Company’ the holders of said and of bonds, ‘The Corporate and ‘The Guarantor’, ‘The Individual hereby Guarantor’ and ‘The Trustee’ reference is mortgage.” made to said (129 p. 278) The court said Or. that the reference import appropriate provisions “sufficient was the agreement the trust into the of but bonds”, the suit mortgage securing towas foreclose the the bonds and provisions appropriate spoke of the which the court power related to the of the trustee under the mort- maturity gage to accelerate the of the entire debt. The right case was not concerned with the anof individual bring holder to an action on a bond. the cases to which the

Of defendant has called our Oregon City Mfg. (C.C.A. 9) attention McAdoo v. Co., (2d) point authority Fed. and is for his position. The reference clause in the bond read: hereby

“To which reference is made for the terms and conditions under which this note is is- the rights covenants sued, maker, and the holder hereof.” provision charged court held that

The of the notes with notice holders of all the terms of agreement, provisions designed trust included prevent action noteholders until certain con- precedent complied had appeared ditions been with. It company, being pay the defendant unable to cer- of the notes about to plan mature, tain had effected a reorganization to which the holder of approximately ninety outstanding per acceded, cent of the notes had plaintiff while the was the sole recalcitrant. The court said: agreement purpose

“The evident in the prevent instant case holder towas individual note securing advantage preference from * * * unity over the others. A of action and agreement was as under the intended, any single trustee’s declaration of default as to note all accelerated the due date of the notes.” study many

Our conclusion from a of these and language other decisions that is of the bond under ought consideration not to be so construed to as qualify, neutralize, or take back the makers’ uncondi promise pay tional to written into the but instrument, purchaser that it means, would be taken to might go that he descrip mean, to the indenture for a rights tion of the and his as a bondholder respect security. with to the supra. v. Enoch Brandon, position The most that can be said for the defendant’s is that the “the words, of the holders of said upon bonds and the conditions which said bonds are they in issued”, the context in employed, which are ambiguous, are if and, that concerning be so, doubts meaning their must be resolved in favor of the holder. simple It would have been a matter, had it been the give intention to notice right of restrictions on the bring to holder action on the bond itself, to in corporate language in the reference clause which would have left such intention from free doubt, as was done Moody Steamship supra, in v. Co., where the Pacific provided: bond “The holder of this bond shall have right no of action thereon or under the Mortgage, said except provided in as that promise instrument.” The pay enough, plain to and those who chose the lan- rightly guage put market on the should bonds duty making equally plain an inten- be held legal rights promise pare and the to that tion down consequent upon the failure to fulfill it. placed upon the character are

Bonds this negotiable as instruments: Guil and dealt with market Ry. supra; Cunning M. A. Co., Minn. & v. 8. Ste. ford ham, supra; L. Co., Rev. Pressed Steel Car Col. policy all it of the law resolve doubts and is negotiability: Realty of their Mendelson favor Corp., supra; Mortgage 10 J. Bills and S., Notes, 479, C. 814, §48; Jones, interpretation Any than that other which we destroy negotiability adopted the would the have desired and to be one which not we think result bonds, by contemplated either those who issued or was bought sold them. See and Enoch v. Brandon, who those Mich. Paepcke Paine, 253 235 N. supra; W. Pflueger Broadway 1205; L. R. A. Trust & 75 Sturgis Ill. 184 N. E. 170, 175, Savings 318; 351 Bank, Savings Trust & Bank, v. Harris 351Ill. Bank National Am. Jur., 7 Bills and 589; E. Notes, 895, N. 184 ibid., 145; ibid., Jones, Fisher, McClelland and § 120, § reasons we are opinion

For the stated in ruled the demurrer to correctly sustaining the court in the affirmative answer the plea abatement, therefore, affirmed. is, judgment May stay Application of execution denied poe op Application Stay Execution On P.(2d) (137 975) LUSK, J. The has filed an appellant application of the execution and stay for a enforcement the herein the recall of the judgment mandate, to enable him to for and obtain a writ of apply certiorari from Court. Such Supreme application is author- Title 28, 350, A., ized U. S. C. which § in provides part:

“In case any the final or judgment is subject court to decree review on writ of certiorari, Court Supreme the execution such judgment and enforcement of or decree may stayed be for a reasonable time to enable party for and aggrieved obtain a apply writ of from Supreme certiorari Court.” ibid., authorizes (b), Section the Supreme Court it, certified to by certiorari, have for review and determination cause wherein a final judgment or been rendered or decree has passed by the highest a state, court of and includes cases “where any title, immunity right, specially set privilege, up or under claimed either party Constitution”. In now under application consideration seeks avers that he a review of our petitioner decision 5th and “and relation to the 14th especially amend- 402 property the Constitution

ments to appellant action.” involved in this wholly application our dis addressed is The Houbigant, Import Company Inc., Magnum v. cretion. Mr. L. Ed. 922. Chief 531, 43 S. Ct. 67 159, 262 U. S. appli referring in that case to a similar Taft, Justice Appeals, Court States Circuit cation to the United said: judge, position first, is in a “That court likely, practice, under our one the case is whether up and, second, certiorari; on us to be taken requires a sus- of convenience the balance whether withholding

pension date.” man- of its and a of its decree The court added: appli- apply also to course, remarks, of “These judgments and to review cations for certiorari ’’ highest courts of states.

decrees length subject at is reviewed whole The Keyes, 266, 250, 186 So. 769, 810, 135 Fla. v. Williams said: it is where necessary prerequisite for such review “The question exemplification of a federal that was affirmatively presented, decision was neces that its sary actually that it cause, was to the determination judgment as rendered or that decided deciding it. Adams have been so without

could not L. 57 Ed. 846, S. 33 S. Ct. Russell, 229 U. v. S. Ohio, U. S. Palmer State 1224; Chicago, I.R. & P. L. Ed. Co. Ct. 63 L. Ed. 294.” S. Ct. 359, 39 248U. S. Maucher, things found in this case. It is are of these None principal sum and interest of to recover an action appellant and another. The sole issued bonds provisions of the bonds that certain was defense and executed to indenture, of a collateral secure their payment, were a bar to the of maintenance the provisions by action. construed the relied on We adversely appellant to him and held that the action the April opinion There- in an rendered 6,1943. would lie, rehearing, appellant petition after a for the filed opinion May From the was on 11,1943. denied without filing complaint petition for the denial rehearing, anywhere there not been in record a has the suggestion question, of a federal and it is difficult to see could have how there for case is one of been, purely involving nothing local law, state but the con- of a contract, struction entered into this state and by governed Supreme its The Court laws. author- not ques- ized state to interfere with a court’s a decision on Railway Express Company tion of that ldnd. American Kentucky, v. 273 269, U. S. 47 S. 353, Ct. 71 L. Ed. 639. suggestion question

The aof federal in the present application, though even it were otherwise suf vague require is too ficient, indefinite meet the appear ments of the since it not statute, does “from of fact depend averments which the claim must question that is one real and substantial”. Con Turnpike Company solidated & Ocean View Norfolk Company, Railway U. S. 228 S. 596, 33 Ct. 605, 57 L. Ed. indeed, there are no And, averments of fact at In the claim event, all. comes too for late, we disposition our final have made of the case and have jurisdiction pass supposed ques no federal though so tion, even we were inclined. Even when the presented question petition federal is first a for a rehearing, Supreme Court of the United States jurisdiction question “unless that will not take was adversely passed on considered, the court”. L. Ed. Rice, 281, 27 S. Ct. Montana v. 291, U. S. A., ibid., p. S. cited U. C. and other cases a the decision supply “the grounds Note a claim the defeated' basis unexpected new Northern Great federal right”. denial of a party Co., & Refining 287 U. S. Oil Sunburst Railway Co. A. L. R. 254. Ed. 77 L. 53 S. Ct. 358, 367, it is that highly improbable, It thus appears in law impossible, should not, suppose, if as we favor on the appellant’s look with will Supreme Court court shown, for certiorari. As has been petition on an of execution stay application grant does considerations of course. The this ldnd as matter discretion have been stated for our guide which should should be disposed we authority, highest us them favor of liberally application to apply for believing reasonable ground there is wherever take might jurisdiction Court Supreme is there here, exists application cause. None fore denied. Am. Bills Notes Jur., §43; Page supra, § v. Ford, and see 65 Or. at ibid., 126, 677; upon are p. sued their face The bonds here they negotiable should so and the intention be public regarded by purchasing is manifested following provision: pass by delivery reg- shall bond unless “This name the books of the in the owner’s istered provided the manner said mort- Trustee said registry, gage such trust; deed of shall however, negotiability coupons hereto affect due and when detached from this attached, ’’ by delivery. be transferable continue shall bond

Case Details

Case Name: Scott v. Platt

Court Name: Oregon Supreme Court

Date Published: Jan 26, 1943

Citation: 135 P.2d 769

Court Abbreviation: Or.