Daily capital journal. (Salem, Oregon) 1903-1919, 1911-04-26
Smith '. Bayer, ct al, MultnOmah
County.


County.
Milton w. Smith, respondent, V. j..
c. Bayer and Peter Hobkirk, appel
lants Appeal from the circuit court
of Multnomah county. The Hon
John B. Cleland, Judge. Argued and
submitted March 20, 1911. Milton W.
Smith and Zera Snow, for respon-
dent. Ralph R. Duniway, for appel
lants Eakin, C. j. affirmed.
This is an action on a promissory
note given by defendants to The Con-
cordia Loan & Trust Company, of
Kansas City, Missouri, bearing date
January3O, 1896, in the sum of $3.50,
with interest at 10 per cent, and con-
tanning a provision for attorney fees
in case of action thereon. Certain
payments were endorsed on the note,
and it was transferred to plaintiff for
collection. The answer admits the
execution of the note, but denies the
endorsement thereof to plaintiff, and
alleges that the Concordia Company
transferred it to the Fidelity Trust
company on or before January 1,
1901, and alleges payment of the
note to the latter in February, 1902.
At the close of the evidence plain
tiff moved the court to direct a ver-
dict in favor of plaintiff, which mo-
tion was allowed. Judgment was
rendered upon the verdict from which
defendants appeal.
Eakin, G. ]. There are many as
signments of error based upon rul-
ings of the court in sustaining OBJ
jections to evidence offered by de-
PENDANTS, relating to the endorsement
Of the note to plaintiff; to the trans
fer of the note by the Concordia
Company to the Fidelity Company;
and to the settlement thereof by de-
PENDANTS with the latter company.
The note and endorsement thereon
were offered in evidence, to which
defendants objected, for the reason
that the genuineness of the endorse
ment had not been established. 1t
appears that the execution of the
note was procured by plaintiff as at
torney for the Concordia Company, in
connection with securing an extern
sion of the time of payment of GER
tain mortgage notes of the defen-
dants in the hands of the Concordia
Company and was sent by him to
the latter company for whom he had
been doing business; that he was
personally acquainted with A. D.
Rider, treasurer of the Concordia,
Company and knew his signature
and handwriting, and testified that
the signature to the endorsement was
his; that he received the note from
the company's name by F. Amelung,
p, who also attests the endorsement
20. X, f. Amelung." This, with pos
session of the note, is primi facie
evidence of plaintiffs ownership
thereof. The cross-examination, to
which objections were sustained, re-
lated to the transfer of the note by
the Concordia Company to the Fidel-
ity Company in 1899 for the purpose
of showing that the note was subject
to defenses available against the
Fidelity Company. The endorsement
on the note was for collection and
therefore, subject to defenses against
the Concordia Company or it's sue
essor in interest. But the ownership
of the note by or the right of the
Fidelity Company to settle the same
were matters of defense and not
proper subjects for cross-examina-
ton None of the evidence offered
either in the cross-eXamination OF
plaintiff or on the defense tended to
show a revocation of the transfer OF
the note to plaintiff. The admissl-
bility of the evidence, offered on the
defense, as to the consolidation Of
the two companies and the CORES
pondence by the Fidelity Company
with j. Thorburn Ross, its agent
leading to the settlement of certain
matters between defendants and the
Fidelity Company depended upon
whether there was evidence tending
to prove that the defendant did pay
or otherwise settle the note with the
Fidelity Company, and treating all
the evidence offered and excluded as
before us, we find that there is nc
evidence of payment or settlement Of
the note with the Fidelity Company
and this renders the consideration OF
each exception separately unneces-
sary.
A letter by the Fidelity Company
dated March 5, 1901, to Mr., Ross, its