*1 Corporation Finance Mansfield. v. judgment-roll jury the Montgomery as effect Company defendants case. The Estate controlling in the case now contend that case was are in error. defendants the court. In this before Company dif- Montgomery case involved Estate property. ferent lumber and carefully entire record and examined the We have The instructions no error. find reversible complete fair that de- jury so were court to the they pleased time were them at with fendants having conflicting, given. been The evidence in properly and determined submitted to judgment must affirmed. favor of It is so ordered. Rehearing Denied. Affirmed. April 5, rehearing March denied February 24, affirmed Argued 1927. FINANCE CORPO- NORTHWESTERN SECOND MANSFIELD. A. GEORGE RATION v. 1022.) 400; 254 Pac. Largely Discretionary in is of Cross-examination Witnesses —Extent by Pleadings. to Issues Joined Confined Trial Court When joined pleadings, issues extent confined to long 1. So discretionary in largely trial court. of cross-examination Brought Cross-examination, Permitting Testi- Which out Witnesses — Defense, Supporting Held not Abuse of Dis- mony Defendant’s 860)-. (Or. L., § cretion hold it without by one who claimed to notice In suit 2. title, permitting cross-examination which payee’s infirmities testimony supporting affirmative defense defendant’s brought out knew consideration, and that was no held, discretion, under Section title, not abuse firmity in any matter stated as to permitting cross-examination L., Or. direct therewith. or connected examination L. 28 R. 605. See C. April, 1927.] Pay Orders Note and Gave

Estoppel Promised Defendant —That Denying Estop Lia- Payment Him from Did not on Others 4). Xi., §798, bility (Or. subd. Under Note paid on, pay note sued promised to 3. That defendant pay- interest, on others relative orders given certain and had *2 liability under denying estop from defendant ment of note did not estoppel, L., relating to 4, Or. 798, subdivision note, under Section injured its plaintiff had been that where it was not shown representa- of acts and by reason way jeopardized in of action tions of defendant. Claiming Party Benefit Estoppel Estoppel Its Element That Involves — Representations Prejudice hy of Conduct has Been Misled to His Party Estopped. of to be Claimed claiming its party Estoppel always that 4. involves element position prejudice into an altered has been to his benefit by misled estopped. claimed to representations party conduct or be Jury Credibility must Determine Witnesses. Trial — jury. Credibility must be determined 5. of witnesses In- Claimed was Given With Evidence —In Suit on Note Defendant Corporation Organized, Until was Evidence structions Hold to Conditions, Other had Given Notes Under Same That Parties Returned, Held Lack of Con- Admissible to Show Which sideration. given 6. In suit on which defendant claimed had been note corporation organized, payee with to hold until was note, issued to for cor- when stock would he poration and that organized, parties never was evidence other given for same purpose, notes under same conditions and and that returned, notes had held admissible those been establish that notes sued was no consideration for on. There Bills and was Positive Evidence That Plaintiff Notes —Where Infirmity Knowledge Payee’s on, Title in Note Sued Liability Jury. Defendant’s Thereon Became Issue Pact for positive note, plain- In suit on where there was 7. evidence that infirmity payee’s title, had actual tiff liability defendant’s note became issue of faet about whieh was final arbiter. PETITION BEHEABING. ON FOB Corporate That Stock Sufficient Trial —Instruction Consideration Promissory Properly Refused, Note Held for in Con- View of Proposed Corporation and That cession ganized. Claim Or- was Never capital 8.Instruction stock sufficient properly promissory refused, note iu held view of consideration given and claim note was concession defendant’s stock organized eorpo- proposed be thereafter and that 10 R. C. L. 4. See 697. 28 R. L. See C. 657. 5.

238 treated not be organized and that ration never was as an organized and stock corporation was obligation proposed until issued. in Contro- on Matters Should not Given Trial —Instructions versy. controversy, given 9. on matters not not be Instructions jury confined to issues likely confused, should be since but language possible cover plain simple and as theory parties litigation. J., Appeal Error, 26, p. 920, 53. p. 624, p. 995, 4 n. n. C. J., p. 1060, Notes, 1025, 78, 70, p. 8 C. Bills n. n. 1064, 33, p. p. 1065, 79, n. n. n. 90. J., 83, p. Estoppel, p. 1113, 52, p. 1114, 53, 1135, 21 n. C. n. 15. n. 84, p. 1137, p. 1254, n. 14, n. n, 14, Trial, Cyc., 13, p. 1518, 69, p. n. p. 1595, 1, 1612, n. 1613, p. 15, 16, p. 1626, n. n. 69. Cyc., Witnesses, 65, p. 2501, 94, p. 2480, 2482, n. n. 59, p. n. p. 2507, p. 2513, 17, p. 2508, p. 2512, n. n. New, n. n. Judge. From Jackson: M.C. Thomas, Department 1. promissory-

This action was collect a instituted to *3 principal at note for and interest $2,500 the sum alleged per per the rate of cent annum $250 attorney’s be reasonable fees. The note is given to L. A. usual form in in this state and was use payable 510 Pittock made his office, Williams and at Oregon. Plaintiff' to have Block, claims Portland, maturity, paying before therefor the same $2,325. the execution of sum The answer admits allegation that the note was sold the denies the note, maturity; plaintiff before denies to the is holder course; due that a bona fide paid sum denies that the $92.88 payment. The note thereon as interest dorsed February indorsement of interest 1922, and dated payment that said interest is to the effect anything September answer denies that 8,1922. up defense further and affirmative for a sets due, and exchange given former that said note April, 1927.] prospective defendant to a

proposed to be National formed as a branch Mortgage Company Bond & San Cali- Francisco, proposed corporation being pro- that fornia; said parent moted as a branch said with headquarters Oregon; part at that as Medford, process organizing corporation, the de- said gave promis- fendant with others at Medford their sory represent- notes to Gr.Bennett, F. who was then ing parent corporation, understanding said with the notes were to be said Bennett until held organization completed the branch could when the parent corpora- were said notes to be to the delivered exchange tion in for stock amount of said payable notes; said notes the National Mortgage Company; Bond & that said branch of said Mortgage Company National Bond & or- never was ganized, said notes were without consideration, obligation against never delivered so as to an become defendant; that at earnest solicitation A. of L. who had succeeded Williams, Bennett said representative Mortgage of the National Bond & Company, upon the defendant executed the note sued payable making to said L. A. Williams instead of Mortgage Company upon Bond & National but conditions as former note same which was re- plaintiff corporation turned to defendant; full notice all facts, of said holding that said L. A. Williams was said note knew organization branch trust until said could com- *4 authority pleted negotiate, had no and sell completion said note until transfer of the organization delivery branch and the thereof in ex- change corporation; plaintiff stock said knew that defendant received no consideration v. Mansfield. purchaser at all for note; said was not a good replied denying for value in faith. Plaintiff allegations material affirmative set answer and up reply allegations an affirmative which estopped making claims de- the defendant from alleged prom- estoppel alleged The fense. consists of pay- pay ises made the defendant note, said giving ment of the sum of as interest $92.88 agent of two orders on an in Mc- the defendant Oklahoma. The submitted to a Alester, was case jury and verdict returned in of defendant. favor assigned by plaintiff appeal are the The errors questions rulings permitting the court certain Bortzmeyer propounded to the witness who manager plaintiff corporation president and at negotiated during note was con- the time troversy following; give refusal certain requested by plaintiff; plaintiff’s denial structions en- for a directed verdict its favor and the motion tering judgment in defendant. favor of the

Affirmed. argument appellant brief and oral For there was a M. Roberts. Mr. G. respondent there was a brief over the names of For Gaylord, Mr. R. Borden and W. with an Mr. N. W. Gaylord. argument oral Mr. plaintiff complains The

COSHOW, J. Bortzmeyer its witness the cross-examination permitted court the defendant too broad. length upon question its conversations witness at said L. A. Williams which led with said transactions ques purchase note. up Some required answer said witness tions which *5 April, 1927.] Finance Corporation 241 Mansfield. v. probably proper too remote to be cross-examination, applying strictly. the rule But the cross-examina- directly tion as a whole called for information con- purchase nected with the from Williams by plaintiff. party may “The adverse wit- cross-examine the any ness as to matter stated in his direct examina- ** ”

tion, § or therewith, connected Or. L., v. Hanson Johnson Contract 546 Co., 117 Or. 541, (244 875). Pac. In Ah Doon 25 93 Smith, Or. 1093), Mr. Justice Robert S. wrote: Bean provided, “Under statute, this and the rule there party a has no to ex- cross-examine witness cept as to facts and circumstances stated his direct on examination or connected therewith; but within this great limitation latitude should be allowed in con- ducting examination. It to should be limited facts stated examination, exact on direct but may extend to other matters which tend limit, explain, qualify modify rebut them, or to resulting provided they therefrom, inference are di- rectly with matter connected stated in the direct against party It true the examination. whom a go cannot, on witness is called cross-examination, into independent part, or affirmative an case on his but his examination such must confine with much of facts connected go examination as direct so counteract adversary the case of his as the direct ex- prove, tends to but amination evidence fact legitimate by cross-examination also called forth why to sustain some no reason tends defense affords party permitted A will not excluded. glean certain facts out from his witness, which, give explanation, coloring would a false without testifies, which and then save his matter about sifting process of a from the cross-examina- witness transaction which the real could be shown.” tion Or. — v. language quoted pertinent to the issues by plaintiff appeal. raised The cross-exam- this objected directly ination connected with testimony Bortzmeyer the witness the effect *6 good he in the note faith without De- notice of infirmities therein. deprived fendant was not the valuable pleaded affirma- cross-examination because an testimony supported by tive defense which was Bortzmeyer cross-examina- witness adduced on inquire only tion. The to cross-examination tended of said note into of the transfer the circumstances plaintiff connected matters from said Williams directly is- within the therewith. All of which were pleadings. John- In of Benson v. sues the case 1014), (165 Pac. Pac. 167 85 684 son, Or. says: the court **“ testimony sought estab- The adduced to by statutory Bulk fraud Sales lish the created pleading to no

Lav because was irrelevant support it.” on cross- instant case adduced in the

The evidence only pertinent di- but was also examination rectly transfer sale and with the connected Bortzmeyer, by plaintiff by testified Williams plaintiff. extent of cross-examina- witness for long discretionary largely court as trial tion is pleadings. joined by issues confined to A case. case this no discretion abuse of There was 501). (44 Kenny 41 Pac. point Walker, v. 979). Speer Smith, Or. 571 See, also, d twenty-one requeste instructions. Six Plaintiff given. some requests The substance of were general by in its court others refused re- Most instructions. April, 1927.] v. Mansfield. estoppel attempted ferred to the issue of be raised by plaintiff reply. in its In this connection the given by structions the court more favorable than it was entitled to. The al- facts leged by plaintiff reply estop- in its not constitute do pel. upon by The facts reliéd as constitut- ing estoppel reply following is stated in its language: prom- “That the defendant has from time to time pay September

ised to the said and on or about paid 23, 1922, thereon the sum of as interest $92.88 August and on or about 23, 1923, and on about September gave 5th, 1923, two certain on one orders John T. Lie Brand of relative McAlester, Oklahoma, payment to the of said note, which said how- orders, accepted ever, were not Lie Brand said reason thereof were no force nor effect and repeated prior promises pay reason his the same maturity payment to its his and his of said interest *7 giving orders, is, of said the said defendant and estopped denying prevented be, and his from liability right upon promissory under and said note and the plaintiff to sue thereon.” plaintiff

4. The evidence on behalf of tended to quoted support reply. statement facts from the the It will noticed that is no statement to the be injured right plaintiff or effect that its the any way jeopardized by in reason of the acts action estoppel representations of defendant. An and the claiming party always element that involves the the prejudice has misled his or into an been its benefit representations position or conduct altered estopped. party There is no alle claimed to be reply, gation there is evi of that kind in and no prove plaintiff tending to altered its dence changed any way by position reason its conduct or Or. 244 pay promises alleged of the defendant to ag'ent given by note or orders his allegation purpose. nor evi- for that There is neither plaintiff any degree that the was to hindered dence injured by alleged the defendant. or conduct of Estoppel pais is rule of and defined en a evidence is by our Code: party declaration, “"Whenever his and has, own intentionally deliberately led or

act, omission, to particular thing act true, another believe a and to arising any litigation upon belief, not, such shall permitted act, of such declaration, omission, out falsify § subd. 4. 798, it.” Or. L., estoppel substantially general rule of The §§ 117 and Bank 118; 21 J. 1113-1116, 116, same: C. (45 427 Pac. Malheur 30 Or. Co., 420, Idaho v. 142); Elec L. R. A. v. Portland General State 160). 98 Pac. The Co., tric long upon estoppel occurred relied acts words bought There claims to have the note. after injury pretense as a result of no up. promises set conduct requested are involved and applicable lengthy. not are Those instant case. There facts evidence payee upon to the was delivered sued organized should be him until held corpora delivered to the should be said then it thereof; stock value for its tion .the anything authority with to do no it until use of make or to *8 foreign organized, the branch a cor or rather been headquarters at Medford. There was poration with testimony, by the defendant himself positive organ interested in who Bennett, Mr. corporation and who dis- izing the the branch April, 1927.] Bortzmeyer, president

interested witness, the manager plaintiff corporation and active very person represented corporation the who the purchase pur- the of the note, was informed before he payee chased the note that it was held the to be delivered to the branch when it should organized; authority the had no except purpose to transfer for note, given. which it was Plaintiff because insists, testimony claims the of the witness Bennett contradictory consistent and in minor some details testimony defendant, that there nowas credibility evidence. The of the witnesses must be jury. determined complains

6. Plaintiff also because some testi mony part on the both the defendant and said given by parties Bennett other notes were at under Medford conditions same and for the same purpose and that all those notes had been returned. pur We think this evidence was admissible for the pose establishing that there was no consideration upon. necessary sued for the note It was for the establish that further fact and in order liability to relieve himself on note that a fact knew that to before it proposed The branch of the note. organized nothing formed or

was never came accomplish that. There was then no the efforts note. The witnesses for the consideration g’o *9 Corporation Finance v. Mansfield. payee’s title in the note. re- Plaintiff’s knowledge that matter garding issue practically only volved in the trial.

Williams, payee did not attend involved, the trial. The record does not disclose whether not any attempt was made produce either party him. Duncan, case of Bank

7. The Valley Jordan 105 Or. point is not 149), it because held that was no evidence there holder of the note who it before for value had maturity any knowledge notice of who alleged infirmity title of transferred it to the holder. In the instant case there was evidence that positive title. payee’s actual infirmity an issue of liability, therefore, Defendant’s became final was the arbiter. fact about which motion for a dispose considerations These affirmance of the require directed verdict ordered. It is so judgment. Affirmed. and McBride JJ., C. and Band, J., Burnett, concur. April 5,

Rehearing denied Behearing. On for Petition 1022.) (254=Pac. B,oherts. M. Mr. G. petition,

For Gaylord. Mr. W. B. Borden Mr. N. W. Contra, rehearing petition presented has Plaintiff specifi- passing in not erred this court .that claiming April, 1927.] d.

cally assignments on the numerous of error based give the Circuit Courtis refusal re- plaintiff. quested petition Although re- hearing presents yet question, plain- no new because sincerely tiff assignments so contends that said proper error were not considered we have deemed *10 following to petition: máke the comments on said plaintiff earnestly First, contends that we should given requested have attention its corporation the effect that stock in a would be suffi promissory cient consideration for note. It recites principal the plaintiff fact that the witness for the given testified that knew note involved for the was corporate pretense part stock. There is no on the corporation defendant that stock in a be would not sufficient consideration for the note. On the con trary, defendant concedes that. The was defense that the note was for stock in a organized; proposed corpora be thereafter the that organized; tion never was that said note was not any obligation be used in manner or treated as an proposed corporation organized until said the issued. stock Defendant’s contention that proposed. corporation organ the never because stock was ever issued, and no ized, con was no sideration for the note. Defendant further con payee authority that the of the note never tended had negotiate the note. Defendant also that contended represented plaintiff president who the the knew all purchased the facts before note. In in the those clearly capital the court assumed that structions stock good corporation was a consideration of a for a jury clearly promissory instructed note, the that represented they that facts found the unless the plaintiff in its existed, answer [121Or. v. Mansfield. knowledge purchasing the facts before of those plaintiff recover. The situation is note, the If exe- similar this had been illustration: note payee for the cuted defendant and left with the plaintiff; borrowing money purpose sole from the but did not if of that fact payee money, note loan the and knew that the authority negotiate other for had no purpose, if the defendant would not liable from without advancing money. facts, If were the state such necessary the court to instruct for it would not good jury money for a would be a consideration promissory the instant it was note. case So proper necessary court to instruct capital con- was sufficient stock promissory that was note because sideration corporate controversy That stock in the case. not in *11 assumed the court consideration is sufficient clearly appears questioned as and not record. from the not matters should not

9. Instructions likely controversy. A be confused instructions on matters informed rather than be confined to the Instructions issue. plain simple language given in as issues theory parties the liti possible to cover rehearing petition is denied. gation.

Rehearing Denied. McBride concur. JJ., C. J., and Rand, Burnett, detail about the notes into other but allowed simply circumstances under about the which testified given. part upon This was a sued defense. court in affirmative defendant’s was liable that defendant structed notwithstanding no consideration that there was note, infirmities knew the unless it,