212 P. 783 | Or. | 1923
We will consider the principal objections in the order named. It is difficult to characterize the instrument given by the plaintiff to Carnahan as a mortgage upon real estate. It lacks the requisites of witnessing by witnesses and acknowledgment, and would probably be ineffective either at law or in equity. Also, as the statute requires the same formalities for a chattel mortgage, the same objections would apply to that view of the case. It is a crude attempt perhaps, by men ignorant of the law, to create a real estate mortgage. As such it would not be enforceable.
It appears from the testimony that Silas Sheridan died after this insurance was taken out and there was some discussion between plaintiff and Josephine as to the interest of Silas in certain personal property not mentioned in the policy and in some accounts which were uncollected. This is as far as the testimony goes. The court directly instructed the jury in effect that if it found that Josephine had any interest in the property when the insurance was taken out, or any interest in the insured property, it must find for the defendant. The instruction went quite as far in favor of the defendant as the testimony warranted, and we find no reversible error on this account.
“This company shall not be liable beyond the actual cash value of the property at the time any loss or damage occurs, and the loss or damage shall be ascertained or estimated according to such actual cash value, with proper deduction for depreciation, however caused, and shall in no event exceed what it would then cost the insured to repair or replace the same with material of like kind and quality.”
As the evidence in regard to the amount of the loss was somewhat conflicting, the giving of this in
Other errors in relation to the admission of testimony are plausibly urged, but with this exception we do not deem them of such materiality as would justify a reversal, even if well taken. But for the error above noted, we are reluctantly compelled to reverse the judgment of the Circuit Court and remand the cause for a new trial.
Reversed and Remanded. Motion to Modify Denied and Costs Taxed. Costs Retaxed.