Daily capital journal. (Salem, Oregon) 1903-1919, 1911-07-27

FaSSett V. Boswell, Douglas County.
Emma E. Fassett, appellant, v.
Mrs. E. E. Boswell, respondent APP
peal from the circuit court for Doug
las county. The Hon. j. w. Hamil-
ton, Judge. Argued and submitted
July u, 1911. c. S. Jackson and
Henry F. Joslin, on brief for appel
liant c. P. Coshaw (Coshow & Rice,
on brief) for respondent. Eakin, G.
j. Affirmed.
This is an action on promissory
note for 5000, the note being in the
usual form. AS a defense to the ac-
ton, defendant denies the execution
of the note, and any Indebtedness to
plaintiff, and alleges that, by means
Of threats of injury to defendants
business and to her person, she was
cOerced into signing the note; and
that the note was without any con-
Sideration and was, void. The cir
cumstances surrounding the execu-
ton of the note were, that defendant
was the proprietor of Boswell
springs, pleasure resort. and
plaintiffs husband went there short
ly before the execution of the note
to take bath. While at the springs
he was badly beaten and bruised by
defendants cook, a Frenchman. AS
to who was to blame or how the
trouble took place between Fassett
and the cook, does not appear. About
u days thereafter plaintiff went to
defendants place and secured the
note, as she says, for compensation
Tor the loss of support of her hus-
0and and the expense of the trip
there Defendant contends that she
signed the note under threats made
by plaintiff that she would ruin her
business, and that she would make
1t look like a bar-room brawl; and
said that if such a thing got out, it
would ruin her business. Defendant
also contends that it was blackmail,
and that she signed the note under
coercion without any consideration.
The case was tried by the jury and
verdict rendered for defendant and
from a Judgment thereon plaintiff ap-
peals
Eakin, c. ]. The plaintiff moved
lor new trial on the grounds a.
that the evidence was insufficient to
Justify the verdict, and (2) of newly
discovered evidence. A motion to set
aside a verdict for insufficiency of
evidence to sustain it is addressed to
tne sound discretion of the trial
court. and cannot be assigned as err
aor on appeal: State v Foot You,
"a Or go, 70; Mccormick Machine
20 v Hovey, Sc Or. 20; Houser V.
west, 80 Or. 292,395; Crossen V. Oil
YER Al Or. 506 And as there was
no motion for a directed verdict, the
ease Is not before us on the INSULT
cheney of evidence.
The motion for new trial on the
ground of newly discovered evidence
Is insufficient to present that ques-
uon' as it does not comply with the
statute Such motion must be
uaSed upon an affidavit setting forth
me Iacts upon which it is based: L.
y. l.. Secs. 174, III; State " Hill, 3S
VI 9O "a. Therefore, it was not er-
suit.
Plaintiff also assigns as error that,
aithough the courts instructions to
w .ue Jury as a whole are correct,
tuey are misleading to the jury. No
eeAcepuon was taken to any instruc-
uVu' and none were requested by
plalntif, and we find no error in re-
atoh ,atoh thereto. They are most favor
aDle to plaintiff.
riaintif also excepts to the ad-
n,iSslon Of evidence as to the want
- - consideration for the note, but un-
uer the statute (Sec. 5S57 L. o. L.
Sy Soery negotiable instrument is
ueeined prima facie to have been for
saluaole consideration. However
!, aul OF consideration may be proved
questioned. The court excluded
.uence eoue offered by plaintiff as to the
1eueral habits of defendant in the
$50, Use OF intoxicating liquors and par
nI.GiIariy at the time Of the injury to
raa. caaintin husband, and this was ex-
bo bp.eu TO- But such evidence had no
ana d'ing upon the issues in the case
Nc. NJ was lmmaterial. Defendant was
ins,.P present when the injuries were
NO. u.c'ed and, personally, took no
pb, -t IN them. Evidence as to the
has bSical condition of plaintiffs hus-
tba subsequent to the execution of
ir note, is also immaterial, II hav-
Ho bearing upon the question of