"[Letter Head of Navajo-Apache Bank & Trust Co.] "April 5th, 1912. "Chas. Broadway Rouss, New York-Sir: Mr. W. G. Hunter of this town is about to open a small store for the sale of sundry Ladies articles of wearing apparel, laces, embroideries etc, he informs me that he is intending to make his purchases from your establishment, and requested me to write you as to his standing in this community. Of 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 his 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 partnership, a presumption arises that each partner is an authorized agent of the rest in contracts relating to the subject-matter of the partnership. Then why this alleged note and contract? The partnership, if it existed at all, was merchandising, and if appellant sold and delivered merchandise to it within the scope of its business at the instance of any one of them, all would become liable. itself the "note and contract" wholly repels any notice of the existence of a partnership. Neither does the draft of the articles of copartnership and the letter of the bank president, recommending Hunter to appellant for credit, have any probative force to prove such relation. The difficulty is that no act is traced to La Prade upon the issue of partnership. The things done, the statements made, all were without his knowledge and 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 indirection that a partnership existed between him and La Prade. In this he seems to have been somewhat successful, but, even so, it falls far short of proving the issue. "Mr. Hunter since comeing here to this town has at all times led a most exemplary life, he is industrious, and sober, and has the respect of every body here his partner Mr. F. T. La Prade is one of our very wealthiest citizens, worth at least $75,000. this is an experiment to start with, and Mr La Prade does not care to be known in the business, so that according to the articles of agreement which I drew up this morning between Mr Hunter and Mr La Prade the later is to be the silent partner, so that the credit of the new firm should be the very highest. Yours respectfully. "W. H. Burbage, Pres." "He (La Prade) says, 'By what authority did you draw up copartnership papers for Hunter and me?' He was mad about it. Q. What did you tell him? A. I told him I drew it up because I got paid for it. That's my business to draw up papers for anybody. Q. Is it your busi ness to send out letters like that? A. I did that at the request of Mr. Hunter. I took Mr. Hunter's word for it; that he and La Prade were going to form a partnership. It was very The judgment of the superior court is right, and it is in all things affirmed. CUNNINGHAM and ROSS, JJ., concur. (84 Or. 666) WATSON et al. v. CITY OF SALEM. (Supreme Court of Oregon. June 19, 1917.) TIME 9(4)-NOTICE-COMPUTATION OF PERIOD. L. O. L. § 531, providing that the time for publication of legal notices shall be computed so as to exclude the first day of publication and to include the day on which the act or event of which notice is given is to happen, or which completes the full period required for publication, applies to the measurement of time for the publication of notices by cities or towns. [Ed. Note. For other cases, see Time, Cent. Dig. 88 19-23.] Department 2. Appeal from Circuit Court, On petition for rehearing. Petition denied. B. W. Macy and Grant Corby, both of Salem (Wm. H. Trindle, of Salem, H. D. Roberts, of Greeley, Colo., Rollin K. Page, of Salem, and W. T. Slater, of Portland, on the brief), for appellant. John H. Carson and Claire M. Inman, both of Salem (John A. Carson and Claire M. Inman, both of Salem, on the brief), for respondents. print the notice in two successive issues of the weekly newspaper; and while one printing and one appearance of the notice would be enough, nevertheless the day on which the paper was actually printed and issued would not be counted in measuring the one week required. Again, if a statute required that a notice be published for not less than five successive weeks in a weekly newspaper, it would not be necessary for the notice to appear in six weekly issues, although, as stated in the original opinion, it is fair to assume that all would concede that the day of the first publication would be excluded in computing the period of five successive weeks. The rule that is applicable to weeks is likewise applicable to days. Our conclusions in the instant case are not out of joint with Payette-Oregon S. Irr. Dist. v. Peterson, 76 Or. 630, 635, 149 Pac. 1051; but, on the contrary, our conclusions here are in harmony with O'Hara v. Parker, 27 Or. 156, 39 Pac. 1004, as well as every other analogous precedent in this jurisdiction. In the original opinion (164 Pac. 507) it is distinctly stated, not that the notice should have appeared in the sixth issue of the newspaper, but that "the right to offer bids should have been kept open until the end of June 10th, and the bids should not have been opɑn The petitions for a rehearing are denied. MCBRIDE, C. J., and BEAN and McCAMANT, JJ., concur. HARRIS, J. In a petition for a rehearing filed in this and in the companion case of Albert v. Salem, the city contends that sectioned until June 11th." 531, L. O. L., does not apply to the measurement of time for the publication of notices by cities or towns. The petitioner relies upon Chung Yow v. Hop Chong, 11 Or. 220, 221, 4 Pac. 326. The case cited is not applicable, for it refers to what is now known as section 539, L. O. L., a provision relating to the proof of the service of notices. As pointed out in the original opinion, section 531, L. O. L., has served as the standard by which to measure time, not only in actions and suits, but also in other proceedings. Notable illustrations may be found in Rynearson v. Union County, 54 Or. 181, 102 Pac. 785, and in State ex rel. v. Macy, 161 Pac. 111. To refuse to abide by the standard fixed by that statute would be to ignore a rule that is firmly es tablished by precedents. (84 Or. 367) HOLTZ et al. v. OLDS et al. (Supreme Court of Oregon. June 19, 1917.) 1. INTEREST 1-ABSENCE OF CONTRACT STATUTE. In the absence of a contract to pay interest. the right to exact it must be found in the stat utes. [Ed. Note.-For other cases, see Interest, Cent. Dig. § 1.] 2. INTEREST 11-ACCRUAL OF RIGHT-NATURE OF LIABILITY. by defendants. [Ed. Note.-For other cases, see Interest, Cent. Dig. § 22.] Under L. O. L. § 6028, providing that the 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-interest' from date of deposit on money deposited another," etc., plaintiffs were not entitled to ed in six successive issues of a daily news- with defendants as security for the purchase of 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. had and received, which was honestly litigated The original opinion points out that section 26 of the charter embraces two elements: (1) 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. O. 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, if a statute directed the publication of a notice for at least one week in a weekly newspaper, it would not be necessary to Department 1. Appeal from Circuit Court, R. C. Nelson, of Portland (Beach, Simon & | fendants. Hoyt v. Paw Paw Grape Juice Co., Nelson, of Portland, on the brief), for appellants. Chriss A. Bell, of Portland (Reed & Bell, C. W. Fulton, and T. M. Dye, all of Portland, on the brief), for respondents. HARRIS, J. The original opinion awarded the plaintiffs a judgment for $20,000 without interest. The plaintiffs insist that they are entitled to interest on $20,000 from July 15, 1911. The defendants honestly and in good faith denied and litigated the right of plaintiffs to recover; and therefore, if the rule announced in Baker County v. Huntington, 48 Or. 593, 603, 87 Pac. 1036, 89 Pac. 144, is adhered to, it would prevent the allowance of interest. There is, however, a more persuasive reason for disallowing interest. 158 Mich. 619, 123 N. W. 529; Todd v. Bettingen, 103 Minn. 493, 124 N. W. 443; Ulbrand v. Bennett, 163 Pac. 445, 446; 27 Cyc. 854. Applying the rule of strict construction, the language of the clause quoted from section 6028 is not sufficiently comprehensive to include the instant case. If A. pays money to B., to be given to C., the money has been received by B. to the use of C. From the moment of the payment to B. the money belongs to C., and not to B., for it was in fact received for the use of C., and at no time is B. the owner of the money. Interest can be allowed only when two elements combine: (1) The money must be received to the use of another; and (2) it must be retained beyond a 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. O. 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. O. 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 "equitable action" commonly designated as an action for money had and received. The basis of the claim of the plaintiffs was that the defendants had $20,000 which in justice and good conscience ought to be paid to the plaintiffs; and it was upon this theory that the judgment was rendered against the de164 P.-75 1088, have neither been overlooked nor ig nored, nevertheless a strict construction of the interest statute will not permit the plain tiffs to recover interest. The petition is denied. MCBRIDE, C. J., and BENSON and BURNETT, JJ., concur. END OF CASES IN VOL. 164 |