Daily capital journal. (Salem, Oregon) 1903-1919, 1911-12-14

1911. ]. w. McCulloch, Oh. C. East
man. McCulloch, Soliss & Duncan on
brief) for respondent. G. W. Hayes.
(Hayes & Crandall, on brieD for an
pellant. Bean, ]. Reversed and re-
manded.
Ihis Is an appeal by defendant
from Judgment upon the verdict of
jury, for $2SO47.
This action is based upon two in
land bills of exchange for S12O47
and S16O respectively, upon which
the plaintiff charger defendant as an
acceptor; the first With the alleged
acceptance, being in the following
form:
"Brogan, Or, Nov. %, 1910. No.
First Trust & Savings Bank
Pay to the order of U. S. National
Bank, ($12O.4O One Hundred and
Twenty 47-1OO Dollars.
Morrison & Son.
20 X. by Tschirgi, Cashier.
"11-22-1O."
The second bill is in the same
form except as to amount and name
of payee.
The complaint alleges the corpor-
ate existence of the plaintiff and de-
fendant; the execution of the bills
and the delivery thereof to plaintiff;
the presentment of the bills to de-
fendant and its due acceptance Of the
same in writing, upon the face there
OF, as follows: 20. K. Tschirgi, cash
lier." At said time e. S. Tschirgi
was cashier of the First Trust and
Savings Bank, of Brogan, Oregon.
Plaintiff, relying upon said bills and
their acceptance by defendant, then
and there paid to the drawer, Morri-
son & Son, the amount of the bills.
November 29, 1910, plaintiff present
ed the bills to defendant for payment
which was refused Two causes of
action are separately stated in sub
stance as above. AS to the alleged
acceptance as it appears upon the
face of the bills in evidence, it is no.
ticed that the word "by" is omitted
in the complaint.
Defendant by its answer denies
the acceptance of the bills, or that
they were presented for acceptance,
and admits that defendant refused to
pay the same, and AYERS that Morri-
son & Son, at the time had no funds
deposited with defendant with which
to pay them.
The reply puts IN issue the new
matter of the answer, and AYERS that
at the time of the transaction, de-
fendant held certain assignments of
accounts, and expected to get re-
turns from certain consignments II
alfalfa seed belonging to Morrison &
Son.
Bean, ]. 1t appears from the evil
dence which is all contained in the
record, that Mr.. j. P. Dunaway, at
the time the transaction occurred
was the vice president and acting
cashier of the plaintiff bank, at Vale,
Oregon; and Mr. E. L. Tschirgi was
the cashier of the defendant bank at
Brogan, Oregon Az the date men
toned on the bills, w. j. Morrison
of the firm of Morrison & Son, gave
the plaintiff the two bills in payment
of note, and for $16O in cash.
Mr.. ]. P. Dunawey testified that he
called Mr.. Tschirgi up over the tele-
phone, a few minutes after he had
taken the bills or checks of Morri-
son & Son, and told him that Mr..
Morrison had stated that he had ar
ranged with Mr. Tschirgi to take
case of his checks, and he wanted to
know if he would do so if the checks
were presented Mr. Tschirgi an
swered that they would not, that
Mr.. Morrison was looking for a re-
mittance from Weiser, and If the
same were received, he would take
care of the checks, but unless the
money came he could not accept
them.
After Mr.. Dunaway phoned to the
Commission Co. in regard to the re-
mittance, and reported to Mr.. Tschlr-
gi that he was informed that the re-
mittance had been mailed; and after
Mr.. Morrison talked over the phone
to Mr.. Tschirgi, Mr. Dunaway said to
the latter, IN mark the checks o.
| X. by you and send them to Boise
for clearance" and Mr. Aschirgi