Daily capital journal. (Salem, Oregon) 1903-1919, 1911-11-24

trial on the amended complaint, the
same as if no other had been filed.
Also in Ferguson V. lngle, 80 Or. 43,
it was considered that by filing an
amended pleading by leave of court,
the plaintiffs eliminated from the rec
ord the original complaint.
1t is therefore clear that in the con-
sideration of the demurrer of plaintiff
to the new matter in the amended an
swer in this case we can look only
to the facts alleged in such amended
answer. Many authorities are cited
and many questions discussed by the
learned counsel in their briefs, which
might possibly arise upon the trial, if
issues were Joined by a reply to the
amended answer, but until such is
sues arise it is unnecessary for the
court to consider matters relating to
the proof of the facts alleged in the
answer which upon the demurrer
must be deemed true. AS to all such
questions, to apply an old saying, it
is better to cross the stream when it
is reached
The plaintifR cites the cases of
Edgar v Golden, 36 Or 44S, and Ruck-
many. Imbler Lumber Co. ~ Or 231,
23S. Both OF these cases relate to
matters of proof upon trial on the
merits, and do not apply to the case
at hand
Counsel for plaintiff urge that it
was necessary for the defendant to
expressly show by the answer that
the extension Of time for payment of
the note was not oral, and that the
agreement to extend was not contem-
poraneOus with the making of the
mortgage: they cite Sutherlin V.
Bloomer, 80 Or 4OS. in which case a
written agreement which was con-
tanned in the record was construed by
the court, while in the case at bar,
the mortgage in question is not be-
fore us, and we cannot consider the
same.
In the case of Kane V. Cortesy. 100
N. Y. 1872, a Chattel mortgage was
given as security in addition to a real
estate mortgage in consideration Of
an extension of time for Dayment, In
the opinion we find this language:
The parOl evidence as to the agree
ment for the extension of time does
not come under the ban of the rule
which prohibits parOl evidence to eX-
plain, vary or contradict written in
struments. 1t does not contradict or
vary the real estate mortgage. That
was past due, and the time or its
payment could be extended by any
valid agreement. 1t does not contra
dict the chattel mortgage. That is
complete in itself and was not in
tended to embody the agreement. Its
| sole purpose was to give the addi-
+ tional security This was an indepen-
dent agreement existing outside of the
two mortgages. 1t was the occasion
or condition inducing the giving of
the chattel mortgage, and no rule of
evidence was violated in allowing it
to be proved by parol." This indi-
Gates that the agreement for the ey-
tension Of time MAY be made verb
ally, indenendent of the mortgage and
not contained therein. After a bill
or note has been executed and deliy-
cred it is a subject of contract like
any other property or chose in action,
and the time for payment may, by an
oral agreement, for valuable consid-
GRAFTON be extended to a definite date: :
! | Daniel Neg. Inst q ed1 sec. 157;
l Greenleaf Ey, sec. 304; 4 Am. &
Eng Enc. Law, q ed.) 1874; Lazelle
! V. Miller 10 Or. $40; Reynolds V. Bar
nard rs Ill. App. 21S; Grace Y. Lynch,
sd VII 766; Myers V. Bank of Fair
bury rs I'll. 257.
H 1t strictness is applied in con-
/ sruing a plea in abatement. An an
swer which alleges the making of a
subsequent agreement based upon a
sufficient consideration, extending the
/ time for payment of a note, and also
that such extended time for payment
has not yet expired, is sufficient and
not demurrable, unless it appear from
the answer that a default has beer
made subsequent to the making of the
agreement: l Enc of Pleading anG
Practice, %, note 2, citing Eby V
Ryan, % Neb. 40; see also CONNER.
cial Bank of Tacoma V. Hart, II
Wash. SO3 (SS Pac. 1116); Jones or
Mtge a ed,) secs. 1890, 1191.
In the case at bar the answer al
leges that after the execution of tn,
note sued on, a contract was made
/ by the parties based upon an indepen
dent consideration extending the tint
for payment of the note until October
H. 1911, which if true would consti
tute a defense to plaintiffs complain
until that time: Fisher V. Stevens
l43 Mo 1871 1t follows that the mat
/ ter of diminution of the record il
immaterial.
The Judgment of the lower court i
therefore reversed and the cause will
be remanded with instructions to owe
rule the demurrer to the amende,
answer, and for such further proceed
ings as may be proper, not inconsis
tent herewith.
! -O--
Is your husband cross? An irritable
fault finding disposition is often du