51 P. 733 | Or. | 1898
delivered the opinion.
This is a suit to restore the original conditions of a promissory note which it is alleged were changed by the payee, under mistake and misapprehension of the rights and agreements of the parties, and to recover thereon against the makers. It is also sought to subject certain property to the satisfaction thereof, which it is alleged was transferred by Tice to Herrall, in trust to indemnify
Three questions remain for solution: (1) Has a court of equity jurisdiction of the cause, as it remains dismembered of the alleged trust relations? (2) Can a recovery be had upon the altered note? And (3) is the name “ Geo. Herrall,” appended to said note, his genuine signature? As concerns the latter question, the evidence leaves scarcely a doubt in our minds that it should be answered in the affirmative. The fact appears palpable upon its face, by comparison with other signatures shown to be his, and the testimony of competent experts and Herrall’s indirect admissions lead to the same conclusion, aside from the direct testimony of Tice that he saw him sign the note. Further comment can serve no good purpose. We will treat of the other questions in their inverse order.
The facts relative to the execution and • alteration of the note, succinctly stated, are as follows: Early on the morning of the eleventh of August 1891, Tice called upon Mrs. Wallace, and arranged with her for a loan of $2,000, he agreeing to give Herrall as security. Mrs. Wallace wrote out the note, dating it “Aug. 11,” and made it payable one year after date. Tice took it to Herrall the same day, and, after himself signing in the presence of Herrall, procured the latter’s signature thereto. On the following day Tice returned with the note thus
Affirmed.