Daily capital journal. (Salem, Oregon) 1903-1919, 1911-10-12
OREGON SUPREME COURT DECISIONS
Published BY Courtesy F. A. Turner Reporter
Supreme Court

ion are deemed unimportant The
trial resulted in a verdict and judg-
ment for the plaintiff in the sum of
$4,000 and the defendant appeals.
Burnett J. The substance of the
complaint is that the defendant, by
an agreement made directly with the
plaintiff, undertook to assume and
discharge the obligation of the Order
of Washington to him. BY his own
statement he says that he accepted
the certificate of membership issued
by the order in lieu of the one pre-
viously issued to him by the Wash
ington Cooperative Life Insurance
Association. Although, as pleaded,
the first certificate may have provid-
ed for the payment direct to plain
tiff of the sum of $4,000 at the end of
the 20 year period or to his benefi-
ciary in case he died sooner in the
one substituted for It by the Order of
Washington the benefit does not in
ure to the plaintiff By this latter
certificate the order does not stipu-
late for payment of any sum of
mony in any event to the plaintiff,
but only to his wife. In any view of
the case, she, or her successor in in
terest, is the only one who could re-
cover on the substituted certificate.
Here the plaintiff asks to recover in
his own right on an obligation in ia
vor Of another without pleading an
assignment to himself of that others
cause of action. The stipulation of
the instrument Is that THE Order of
Washington agrees that after the
maturity of this certificate of mem
bership occasiOned by the death of
the member or otherwise, one as
sessment not exceeding
in amount the sum of $4,000 will
be paid as benefit to Emily Weoko-
line Larsen Spande, bearing relation
ship of wife This does not furnish
ground for recovery by plaintiff, for
the action must be brought in the
name of the real party in interest,
who, in this case, appears to be
plaintiffs wife. L. o. l.. Sec. 27.
Again, the legal effect of the con-
tract pleaded by the plaintiff is that
the defendant agreed with him to an
swer for the debt. default or mis-
carriage of the Order of Washington;
that is to say, in substance, at the
end Of the 20 year period, providing
the plaintiff had complied with the
terms of the contract on his part,
there would then be a debt of $4,000
owing from the Order of Washington
to him, or his beneficiary, and ac-
cording to the complaint, the sub
stance of the contract on the part of
the defendant was to answer for this
possible debt of the Order of Wash
lngton. This matter being traversed
by the answer 1t was incumbent upon
the plaintiff to prove his allegation
IN that respect by such evidence as
the statute of frauds requires, viz:
an agreement in writing or some
note or memorandum thereof ex-
pressing the consideration and
signed by the defendant or its law
fully authorized agent. L. o. L.
Sec. sos, AS evidence of the con-
tract alleged, the plaintiff introduced
three letters purporting to be signed
by j. l.. Mitchell as Manager of the
Order of Washington Department
Western Life Indemnity Company"
The signature of Mitchell as well as
his authority to sign so as to charge
the defendant were both challenged
by proper objections on the part of
the defendant, The only evidence on
that subject offered by plaintiff was
that Of p. j. McMannama, as fol-
lows:
Q, Did you ever have any dealings
with J. l.. Mitchell?
A. When?
Q. During the time you were en-
ployed by the. Western Life Indem-
nifty Company?
A. Yes sir
O. What position did Mr.. ]. L..
Mitchell occupy with the Western
Life Indemnity Company between
February 10, 1908, and the last of the
year?
A. could not tell you that of my
own knowledge don't know any
thing about that, only what would
hfer from his correspondence and
papers,
O. What did the Company hold him
out to you TO be?
MT smith: We object to that He
assumes that the Company did hold
him out in certain way and we oh
ject to that as incompetent and ir-
relevant.
Court: Objection overruled.
@ Answer the question.
A, | understood that he had the
management of the Western Depart
ment of their business.
Mr.. Smith 1t is understood that
an exception is allowed?
Court; Exception is allowed.
O. As the manager of the Western
Life Indemnity Company?
A, That is what | understood.
Q. Did you have much correspon-
dence in that regard?
A. Yes, considerable.
Q. You say he was so held out to
you?
A. In a certain order of business.
but II there was anything special.