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president of the bank to draft a form of ar- simple on my part. I had no reason to doubt ticles of copartnership between him and La Hunter. Q. Why did you say that he was the Prade. These articles were drafted as di- he and La Prade were going into partnership,

partner of Hunter? A. Because he told me rected by Hunter and according to his dic- ! and asked me to make up the papers in accordtation. Hunter was a customer of the bank, | ance, and on the strength of that asked me to as was also La Prade, the latter being a com- write that letter to help bis credit, which I also

did." paratively wealthy man and one of the substantial citizens of Winslow, with credit un Conceding for the purpose of argument impaired. Mr. W. H. Burbage, who was the that La Prade did sign the “note and conpresident of the bank at the time, is a law-tract,” we fail to see any evidence of a coyer by profession. When this form of a co- partnership here. On the other hand, it partnership agreement had been drafted, tends to disprove any such relation. La Hunter asked the president to give him a Prade was a wealthy man, his credit exletter to Rouss, recommending him for credit cellent. If Rouss exacted it, it must have in the purchase of merchandise. At his re- been because he would not extend credit to quest, and on the faith of representations Hunter. If Hunter wanted it, it was for the made by Hunter, the president of the bank purpose of getting credit to the extent of gave him the letter, a copy of which is as $300 in virtue of La Prade's financial standfollows:

ing. From the very constitution of a partner“[Letter Head of Navajo-Apache Bank & ship, a presumption arises that each partner Trust Co.]

is an authorized agent of the rest in con

"April 5th, 1912. "Chas. Broadway Rouss, New York-Sir: Mr.

tracts relating to the subject-matter of the W. G. Hunter of this town is about to open a

partnership. Then why this alleged note and small store for the sale of sundry Ladies'articles contract? The partnership, if it existed at of wearing apparel, laces, embroideries etc, he all, was merchandising, and if appellant sold informs me that he is intending to make his and delivered merchandise to it within the purchases from your establishment, and requested me to write you as to his standing in this scope of its business at the instance of any community.

one of them, all would become liable. Of “Mr. Hunter since comeing here to this town itself the “note and contract” wholly repels has at all times led a most exemplary life, he is industrious, and sober, and has the respect any notice of the existence of a partnership. of every body here his partner Mr. F. T. La Neither does the draft of the articles of Prade is one of our very wealthiest citizens, copartnership and the letter of the bank worth at least $75,000. this is an experiment to president, recommending Hunter to appellant start with, and Mr La Prade does not care to be known in the business, so that according to for credit, have any probative force to prove the articles of agreement which I drew up this such relation. The difficulty is that no act morning between Mr Hunter and Mr La Prade is traced to La Prade upon the issue of partthe later is to be the silent partner, so that the nership. The things done, the statements credit of the new firm should be the very highYours respectfully,

made, all were without his knowledge and “W. H. Burbage, Pres." consent. Nothing was done in his presence The president of the bank had no author- which has even a remote tendency to prove ity whatever to act in these matters for La the issue. What was done in his absence Prade. What was done was done solely at was unauthorized, was never assented to, or the instance of Hunter. La Prade did not adopted or ratified by him. On the contrary, know of these matters until several weeks when the occasion presented he promptly and afterwards. When he did find out what resolutely repudiated the whole thing. It had been done, he became very angry, scold- may be, as appellant asserts, that the credit ing the president of the bank for drafting the was extended to the “Racket Store" on the partnership papers. La Prade at all times faith of the letter of the bank president denied that he was a partner of Hunter. It recommending Hunter. But however this appears that when La Prade learned of the may be, it is perfectly clear that the indebtcopartnership papers he came into the bank edness thereby incurred may not be recover"roaring and was mad” about it. It does ed from one who played no part in the matter not appear that La Prade had any knowledge at all. The only intimation one gets from of the letter. Mr. Burbage, the president of a careful reading of the record is that Huntthe bank, testifying, said :

er sought to give the impression by indirec"He (La Prade) says, 'By what authority did tion that a partnership existed between him you draw up copartnership papers for Hunter and La Prade. In this he seems to have been and me?' He was mad about it. Q. What did you tell him? A. I told him I drew it up be- somewhat successful, but, even so, it falls far cause I got paid for it. That's my business to short of proving the issue. draw up papers for anybody. Q. Is it your busi The judgment of the superior court is ness to send out letters like that? A. I did that at the request of Mr. Ilunter. I took Mr. right, and it is in all things affirmed. Hunter's word for it; that he and La Prade were going to form a partnership. It was very CUNNINGHAM and ROSS, JJ, concur.

est.

RIOD.

(84 Or. 666)

print the notice in two successive issues WATSON et al. v. CITY OF SALEM. of the weekly newspaper; and while one (Supreme Court of Oregon. June 19, 1917.) printing and one appearance of the notice

would be enough, nevertheless the day on TIME Om9(4)--NOTICE-COMPUTATION OF PE

which the paper was actually printed and L. O. L. & 531, providing that the time for issued would not be counted in measuring publication of legal notices shall be computed so the one week required. Again, if a statute as to exclude the first day of publication and to required that a notice be published for not include the day on which the act or event of which notice is given is to happen, or which less than five successive weeks in a weekly completes the full period required for publica- newspaper, it would not be necessary for the tion, applies to the measurement of time for notice to appear in six weekly issues, althe publication of notices by cities or towns.

though, as stated in the original opinion, it is [LI. Note.-For other cases, see Time, Cent. fair to assume that all would concede that Dig. $8 19–23.)

the day of the first publication would be exDepartment 2. Appeal from Circuit Court, cluded in computing the period of five sucMarion County; Wm. Galloway, Judge. cessive weeks. The rule that is applicable

On petition for rehearing. Petition denied. to weeks is likewise applicable to days. Our For former opinion, see 164 Pac. 567. conclusions in the instant case are not out of

B. W. Macy and Grant Corby, both of Sa- joint with Payette-Oregon S. Irr. Dist. v. lem (Wm. H, Trindle, of Salem, H. D. Rob- Peterson, 76 Or. 630, 635, 149 Pac. 1051 ; erts, of Greeley, Colo., Rollin K. Page, of but, on the contrary, our conclusions here are Salem, and W. T. Slater, of Portland, on the in harmony with O'Hara v. Parker, 27 Or. brief), for appellant. John H. Carson and 156, 39 Pac. 1004, as well as every other Claire M. Inman, both of Salem (John A. analogous precedent in this jurisdiction. In Carson and Claire M. Inman, both of Salem, the original opinion (164 Pac. 507) it is dison the brief), for respondents.

tinctly stated, not that the notice should

have appeared in the sixth issue of the newsIIARRIS, J. In a petition for a rehearing have been kept open until the end of June

paper, but that “the right to offer bids should filed in this and in the companion case of Al. 10th, and the bids should not have been oper:bert v. Salem, the city contends that section ed until June 11th." 531, L. O. L., does not apply to the measure

The petitions for a rehearing are denieu. ment of time for the publication of notices by cities or towns. The petitioner relies upon M<BRIDE, C. J., and BEAN and McChung Yow v. Hop Chong, 11 Or. 220, 221, 4 CAMANT, JJ., concur. Pac. 326. The case cited is not applicable, for it refers to what is now known as section

(84 Or. 3677 539, L. 0. L., a provision relating to the proof of the service of notices. As pointed

HOLTZ et al. v. OLDS et al. out in the original opinion, section 531, L. 0.

(Supreme Court of Oregon. June 19, 1917.) L., has served as the standard by which to 1. INTEREST W1-ABSENCE OF CONTRACT measure time, not only in actions and suits,

STATUTE.

In the absence of a contract to pay interest, but also in other proceedings. Notable illus- the right to exact it must be found in the stat trations may be found in Rynearson v. Union utes. County, 54 Or. 181, 102 Pac. 785, and in State (Ed. Note.-For other cases, see Interest, ex rel. v. Macy, 161 Pac. 111. To refuse to Cent. Dig. § 1.] abide by the standard fixed by that statute 2. INTEREST 11-ACCRUAL OF RIGIIT--YAwould be to ignore a rule that is firmly es

TURE OF LIABILITY.

Under L. 0. L. 8 6028, providing that the tablished by precedents.

rate of interest shall be 6 per cent. "on money The remainder of the argument found in received to the use of another and retained bethe petition proceeds upon the theory that yond a reasonable time without the consent of we held that the notice should have appear- another," etc., plaintiffs were not entitled to ed in six successive issues of a daily news- with defendants as security for the purchase of

interest from date of deposit on money deposited paper. We did not rule that the charter re- stock under a contract void for uncertainty and quired the notice to be printed and to appear recovered by plaintiffs in an action for money in six successive issues of the newspaper. bad and received, which was honestly litigated

by defendants. The original opinion points out that section

[Ed. Note.--For other cases, 26 of the charter embraces two elements: (1) Cent. Dig. 22.]

see Interest, The period of publication; and (2) the man- 3. INTEREST 3-STATUTES-CONSTRUCTION. ner of publication. The period of publica As interest statutes are in derogation of the tion is measured by applying the rule estab- common law, they must be strictly construed. lished in section 531, L. 0. L. This rule ex

[Ed. Note.-For other cases, see Interest,

Cent. Dig. $ 3.] cludes the first day of publication in determining the period of time. For example, Department 1. Appeal from Circuit Court, if a statute directed the publication of a Multnomah County ; T. J. Cleeton, Judge. notice for at least one week in a weekly On petition for rehearing. Petition denied. newspaper, it would not be necessary to For former opinion, see 164 Pac. 583.

Emo For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

R. C. Nelson, of Portland (Beach, Simon & fendants. Hoyt v. Paw Paw Grape Juice Co., Nelson, of Portland, on the brief), for appel. 158 Mich. 619, 123 N. W. 529; Todd v. Betlants. Chriss A. Bell, of Portland (Reed & tingen, 103 Minn, 493, 124 N. W. 443; Ulbrand Bell, C. W. Fulton, and T. M. Dye, all of v. Bennett, 163 Pac. 445, 446; 27 Cyc. 854. Portland, on the brief), for respondents.

Applying the rule of strict construction,

the language of the clause quoted from secHARRIS, J. The original opinion award- tion 6028 is not sufficiently comprehensive to ed the plaintiffs a judgment for $20,000 with-include the instant case. If A. pays money out interest. The plaintiffs insist that they to B., to be given to C., the money has been are entitled to interest on $20,000 from July received by B, to the use of C. From the 15, 1911. The defendants honestly and in moment of the payment to B. the money begood faith denied and litigated the right of longs to C., and not to B., for it was in fact plaintiffs to recover; and therefore, if the received for the use of C., and at no time is rule announced in Baker County v. Hunting- B. the owner of the money. Interest can be ton, 48 Or. 593, 603, 87 Pac. 1036, 89 Pac. 144, allowed only when two elements combine: (1) is adhered to, it would prevent the allowance The money must be received to the use of anof interest. There is, however, a more per- other; and (2) it must be retained beyond a suasive reason for disallowing interest. reasonable time without the owner's consent.

[1-3] In the absence of a contract to pay When the statute speaks of money received interest, the right to exact it must be found to the use of another, it means money which in the statutes. Sorenson v. Oregon Power in fact is received to the use of another; it Co., 47 Or. 24, 34, 82 Pac. 10. Before the does not include money which, by the aid of plaintiffs can successfully claim the allow- a legal fiction interposed after the actual reance of interest, they must show that they ceipt of the money, is treated as money recome within the terms of section 6028, L. 0.ceived to the use of another; it means monL., as it read prior to the amendment found ey that is received to the use of another, as in chapter 358, Laws 1917. The plaintiffs distinguished from money which is merely have not brought themselves within any regarded as money received to the use of anclause of section 6028, L. 0. L., as that stat- other. That this interpretation is not unduly ute is interpreted by Sargent v. American narrow is confirmed by the words "and reBank & Trust Co., 80 Or. 16, 42, 154 Pac. 759, tained beyond a reasonable time, without the 156 Pac. 431, unless they are within the owner's consent." The statute contemplates clause which allows interest "on money re- that the person who actually has the money ceived to the use of another, and retained be- is at no time the owner, but he has only reyond a reasonable time without the owner's ceived the money to the use of another, who consent, expressed or implied”; and hence is in truth the owner during all the time. we must first determine the meaning of the When the statute speaks of the consent of quoted clause before we can know whether it the owner, it necessarily signifies that some is available to the plaintiffs. Interest stat-person other than the holder of the money is utes are in derogation of the common law, in fact, and not by reason of a fiction, the and for that reason must be strictly con- owner. While the conclusions expressed in strued. 22 Cyc. 1481. The action prosecut-Graham v. Merchant, 43 Or. 294, 311, 72 Pac ed by the plaintiffs assumed the form of the 1058, have neither been overlooked nor ig. "equitable action” commonly designated as nored, nevertheless a strict construction of an action for money had and received. The the interest statute will not permit the plain basis of the claim of the plaintiffs was that tiffs to recover interest. the defendants had $20,000 which in justice The petition is denied. and good conscience ought to be paid to the plaintiffs; and it was upon this theory that MCBRIDE, C. J., and BENSON and BURthe judgment was rendered against the de- | NETT, JJ., concur.

164 P.-75

END OF CASES IN VOL. 164

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