is not bound to return the premium, though it, of this case must be determined by the conrefuses to indemnify insured for the accident tract of renewal made on December 22, 1912, already sustained. without reference to the payment made afterward. [Ed. Note. For other cases, see Insurance, Cent. Dig. 88 1041-1056, 1058-1070; Dec. Dig. § 392.*] Department 2. Appeal from Circuit Court, Action by Edward L. Matthews against the Travelers' Insurance Company. From a judgment for plaintiff, defendant appeals. Reversed, and nonsuit granted. This is an action by Matthews upon an accident policy of insurance. The question The question involved is whether or not the policy was renewed. Plaintiff suffered an accident by the loss of an eye between December 22d and March 22d. He had obtained an accident policy on June 22d for three months, and renewed it on September 22d for an ad ditional three months. About December 22d the policy was not renewed, but he contends that the agent, Kavanaugh, agreed that the company would carry the risk and keep the policy alive for 30 days until he could renew it. The case was tried before a jury, and from a judgment rendered upon the verdict found therein, the defendant appeals. C. A. Hart, of Portland (Carey & Kerr, Portland, on the brief), for appellant. R. Jacobson, of Portland (W. A. Carter, Portland, on the brief), for respondent. [2] Subdivision 9 of the policy states that the acceptance by the company or an agent thereof of a past-due premium shall reinstate the policy in force as to a disability resulting from an accident occurring after the payment shall have been made. Especially would this be true if an injury had been previously received of which the company had no notice. For the company to receive a past-due premium after an accident with the understanding that it would cover a liability for a previous accident which occurred while the premium was unpaid would have been to receive $15 as a consideration for a promise to forthwith pay plaintiff $2,500, by creating a definite liability for that amount, and not as a contingency or risk. At the time of the accident the plaintiff's testimony shows that he did not consider the policy would be in force until the payment would be made, and he phoned to the agent to know if his policy was still in force, and immediately sent the money. Plaintiff was chargeable with notice of the terms of the policy provision that the payof ment of a past-due premium creates a liabiliN.ty for accidents occurring after the payment. of Plaintiff seems to rely upon the payment made on the 13th of February, and the argument is based upon that fact; but the payment is entitled to no consideration as it was received, so far as the defendant is concerned, on a misconception of the facts. [3] The conversation claimed to be the renewal of the policy on December 20th is given by the plaintiff as follows: "About the 20th of December, 1912, Mr. Kavanaugh came up *** where I was working, and he asked me if I was ready to pay the premium on my insurance policy. I told him then that I didn't have the money to pay it at that time, and he then asked me when I would pay it, when I could pay it, and I told him that I wasn't sure just when I could pay it. Mr. Kavanaugh then said, 'You are not going to drop it. are you? and I said, 'No; not if I could help it." Mr. Kavanaugh then says to me, 'Well, we will carry it for you for awhile." I thanked him and told him that I would pay it as soon as I could, and he then went away. EAKIN, J. (after stating the facts as above). [1] There was proof offered tending to show the payment of the premium on the policy the same day, but subsequent to the happening of the accident by which plaintiff suffered his injury. There is an insuperable obstacle to the court's giving any effect to the fact that the premium was paid after the accident. At the time of the payment of the premium-namely, February 13, 1913 -the agent, Kavanaugh, delivered the renewal receipt to the plaintiff, but plaintiff did not communicate to the agent the fact of the injury. He simply phoned the agent to know whether or not the policy was still in force, and, being informed that it was, he sent the money down and obtained the renewal receipt. In the first place we consider this was obtained through fraud and deceit; If the agent was going to carry the policy that the plaintiff deliberately kept from the for plaintiff, the renewal receipt must have knowledge of defendant's agent the fact of been surrendered. In another case, when the accident; and that the money was re- asked if his policy was still in force, he anceived by defendant's agent on the assump- swered: "Well, I understood that it was retion that no accident had happened. Com-newed." This was not a statement of a fact. mon honesty and fair dealing would have dictated to plaintiff that he should have notified the defendant of the accident when the money was sent to the agent, or when he called him up on the phone; and the fact that the payment of the premium was received by the agent after the accident and without knowledge thereof cannot be given any consideration on this issue. The merits It tends to show that he had no reason to think that he had renewed his policy, but was just making an attempt to continue an option thereon. There was nothing said in the conversation by him and Kavanaugh that would be understood as creating a liability to pay, and would not bind the company. It could not have enforced any remedy for the premium. The fact that Kavanaugh did not deliver the renewal receipt would have been a complete defense to an attempt by the company to collect on that conversation. The payment made on the 13th of February was plainly an after consideration, and would not have been made but for the accident. [4] There has been a great deal said about the company returning the $15, but paragraph 9 of the policy is to the effect that payment of a past-due premium reinstates the policy as to injuries occurring after the payment. The plaintiff testifies that Mr. Kavanaugh asked him after the payment of the premium if he wished to keep up the policy, and he says he told him that he did. Therefore he was not entitled to the return of the money paid, as that was the only thing that could keep it alive. Plaintiff urges that if there is any evidence in plaintiff's favor the verdict should not be disturbed. The payment is not evidence that should be submitted to the jury; and the only other question that might in any circumstance be submitted to the jury would be evidence of a contract of renewal; but, as we have seen, that is insufficient to sustain a verdict. There is no evidence that Kavanaugh's authority was sufficient to authorize him to waive the stipulations in the policy, nor was there any evidence that the company, either by word or act, waived its terms. No issue of that kind was set up or proved. The judgment of the lower court is reversed, and the motion for nonsuit allowed. 4. LIBEL AND SLANDER (§ 7*)-WORDS IMPUTING CRIME-FORGERY. To charge a person in writing with forgery is actionable per se. [Ed. Note.-For other cases, see Libel and Slander, Cent. Dig. §§ 17-78; Dec. Dig. § 7.*] 5. LIBEL AND SLANDER (§ 54*)-JUSTIFICATION-TRUTH. Under the express provisions of L. O. L. § 92, a person charged in a civil action with libel may, defend by alleging that the alleged libelous words were true. [Ed. Note.-For other cases, see Libel and Slander, Cent. Dig. § 152; Dec. Dig. § 54.*] 6. EVIDENCE (§ 584*)-WEIGHT AND CONCLUSIVENESS-QUESTIONS OF FACT. Const. art. 7, § 3, providing that in actions at law no fact tried by a jury shall be otherwise re-examined, unless the court can affirmatively say there is no evidence to support the verdict, the evidence to support the verdict is legal evidence, tending to prove every material fact as to which the prevailing party has the burden of proof. Cent. Dig. §§ 2424, 2426, 2427; Dec. Dig. § [Ed. Note.-For other cases, see Evidence, 584.*] 7. TRIAL (§ 139*)-TAKING QUESTIONS FROM JURY-SUFFICIENCY OF EVIDENCE. If there is any evidence to support the verdict, the motion for an instructed verdict is properly overruled. Dig. §§ 332, 333, 338-341, 365; Dec. Dig. § [Ed. Note.-For other cases, see Trial, Cent. 139.*1 8. FORGERY (§ 5*)-ELEMENTS INTENT TO DE FRAUD. Where a person received a check in settlement of a claim of a company and indorsed the company's name on the check and deposited it to his own credit, he is not guilty of forgery, if he believed that he had authority, as the he had no such authority in fact; the intent to defraud being an essential element of forgery. [Ed. Note.-For other cases, see Forgery, Cent. Dig. §§ 4-6; Dec. Dig. § 5.*] MCBRIDE, C. J., and BEAN and MCNARY, agent of the company, to sign his name, though JJ., concur. (72 Or. 535) WILLETTS v. SCUDDER. (Supreme Court of Oregon. Oct. 6, 1914.) 1. APPEAL AND ERROR (§ 873*)-REVIEW SCOPE AND EXTENT. Since an order denying a new trial is not appealable, it cannot be reviewed on appeal from the judgment. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 3460, 3461, 3522-3525; Dec. Dig. § 873.*] 2. LIBEL AND SLANDER (§ 1*)-"LIBEL." A libel is a malicious defamation, made public either by printing, painting, writing, signs, or pictures, tending to blacken the memory of one who is dead, or the reputation of one who is living, and to expose him to public hatred, contempt, and ridicule. [Ed. Note.-For other cases, see Libel and Slander, Cent. Dig. §§ 1, 10; Dec. Dig. § 1.* For other definitions, see Words and Phrases, First and Second Series, Libel.] 3. FORGERY (§ 1*)-DEFINITION. Forgery is the false making or material altering, with intent to defraud, of any writing, which, if genuine, might be of legal efficacy, or the foundation of legal liability. [Ed. Note.-For other cases, see Forgery, Cent. Dig. §§ 1, 4-7; Dec. Dig. § 1.* For other definitions, see Words and Phrases, First and Second Series, Forgery.] 9. LIBEL AND SLANDER (§ 123*)-ACTIONSQUESTIONS FOR JURY. pleads the truth of its charge that plaintiff In an action for libel, where defendant forged the indorsement of a check, it is a question for the jury whether plaintiff made the indorsement with intent to defraud. [Ed. Note.-For other cases, see Libel and Slander, Cent. Dig. §§ 356-364; Dec. Dig. § 123.*] Department 1. Appeal from Circuit Court, Multnomah County; George N. Davis, Judge. Action for libel by P. L. Willetts against W. T. Scudder. From a judgment for plaintiff, defendant appeals. Affirmed. Johnson, of Portland, on the brief), for apA. B. Ridgway, of Portland (Ridgway & pellant. B. W. Graham, of Portland (Wm. E. Beckett, of Portland, on the brief), for respondent. RAMSEY, J. This is an action brought by the plaintiff to recover damages from the cerning him, by the defendant. defendant for alleged libels published con The complaint contains two counts, charging the defendant with the publication of *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes libels, and the libels charged are contained in two letters written by the defendant and addressed to L. S. Miller, president of the Adirondack Maple Company, of Lowville, N. Y. The defendant is the president of the Scudder Syrup Company of Chicago. During a part of 1911, and parts of January and February, 1912, the plaintiff was in the employ of the Scudder Syrup Company, as a traveling salesman in Oregon and the Pacific Northwest. About the 10th of March, 1912, without consulting the Scudder Syrup Company, he ceased working for that company and entered the employment of the Adirondack Maple Company, as a traveling salesman for the latter company. These companies were, to some extent, competitors in the sale of syrup. In November, 1911, the Scudder Syrup Company had an account against Allen & Lewis, of Portland, that was in part disputed. The plaintiff was not working for said company at that time, but he but he was residing in Portland. The defendant, for said company, wrote the plaintiff and asked him to call on Allen & Lewis and adjust said claim for it. The plaintiff called on Allen & Lewis, as directed, and made a settlement with them, and it was found that Allen & Lewis, at that time, owed said company $89.12, for which they gave to the plaintiff, in settlement of that balance, a check for said amount. It is dated November 20, 1911, and is payable to the order of the Scudder Syrup Company. On said 20th day of November, the plaintiff wrote to the Scudder Syrup Company, at Chicago, reporting that he had adjusted said matter with Allen & Lewis, and that he had received from them a check for $89.12, in settlement of said account, and asking the Scudder Syrup Company to permit him to use said check or the money covered by it as an advance on his salary for January and February, 1912. It had been agreed between him and that company that he should resume working for that company as a traveling salesman in January, 1912. About two days after writing said letter, and before he received an answer to his request, the plaintiff indorsed said check in blank by writing on the back thereof the following words: "Scudder Syrup Company, A. L. Willetts"-and deposited it to his credit at the banking house of Ladd & Tilton, where he was accustomed to do his banking business. On November 28, 1911, the Scudder Syrup Company wrote the plaintiff from Chicago, acknowledging that it had received his letter of November 20th, saying inter alia the following: "You will also note we have credited them (Allen & Lewis) with the check given you in the amount of $89.12, which amount has been charged to your account with us." On December 1st, four days later, the defendant also wrote the plaintiff a letter ac knowledging the receipt of the plaintiff's "I note that Allen & Lewis gave you $89.12, and this amount you want temporarily, which is satisfactory." The two letters referred to, supra, from said company and the defendant show that the plaintiff on November 20th, the day that the check from Allen & Lewis was given to him, wrote to the Scudder Syrup Company, giving it an account of the adjustment of said business with Allen & Lewis, and of the fact that the last-named company had given him a check for $89.12, to pay the amount due from said company to the Scudder Syrup Company, and asking the lastnamed company to permit him to use the money covered by said check as an advance on salary or as a loan, and that both the Scudder Syrup Company and the defendant agreed that it was satisfactory for him to have said money as an advance or as a loan. Those letters show also that he informed said company that Allen & Lewis had paid said account by check. The company's letter states that Allen & Lewis had been credited with the amount of the check, and that the plaintiff had been charged therewith in his account. The libels that are the basis of this action grew out of the indorsement of said check by the plaintiff. The plaintiff was in the employ of the Scudder Syrup Company during a part of January and February, 1912; but on March 10, 1912, he entered the service of the Adirondack Maple Company of Lowville, N. Y. On April 12, 1912, the defendant wrote to L. S. Miller, president of the Adirondack Maple Company, a letter informing him that the Scudder Syrup Company had had the plaintiff in its employ during the previous year, and had paid him $100 per month and traveling expenses. He stated also that the plaintiff was indebted to his company, and made the following charge against him: our order, and, to get the money on this check, "Allen & Lewis gave him a check, payable to he forged our name." On April 26, 1912, the defendant wrote said L. S. Miller another letter, again accusing the plaintiff of the crime of forgery, as follows: "We have written Mr. Willetts that, unless he reimburses us for the check on which he forged our signature, we will begin a criminal action against him at once." Miller was the The complaint contains two counts for libel, based on the charges made by the defendant in the two letters, addressed to L. S. Miller, as stated, supra. president of the company, for which the plaintiff was then working. The charges in those letters caused said company to discharge the plaintiff, and he was, in consequence thereof, without employment for three months. The defendant filed an answer, denying parts of the complaint, and then set up, as a defense to each count of the complaint, plaintiff and set out in the complaint were The defendant asks us on this appeal to true, etc. The answer pleaded also a set- set aside said verdict and to hold that his tlement with the plaintiff, but, as there ap-motion for an instructed verdict for the depears to be no merit in said last-named de- fendant should have been sustained by the fense, it will not be referred to again. trial court. The most of the new matter of the answer was put in issue by the reply. At the trial a verdict and a judgment were rendered for the plaintiff in the sum of $433.75. When all of the evidence was in, the defendant moved the court to instruct the jury to return a verdict for the defendant. This motion was denied. After the judgment was rendered, the defendant presented a motion to set aside the verdict and judgment and for a new trial. This motion also was denied. The defendant appeals and assigns as errors the denial of said motions. It is not claimed that the trial court erred in admitting or excluding evidence or in the instructions given to the jury. [1] 1. The order denying the motion for a new trial is not an appealable order, and hence we cannot review the action of the court in relation thereto. This rule is well settled by the decisions of this court. It is not necessary to cite the cases announcing this rule of practice. 2. At the conclusion of the evidence, the defendant moved the trial court for an order thereof, directing the jury to return a verdict in favor of the defendant, for the reason that the defendant had justified the charges made against him, and for the further reason that the plaintiff had failed to make out his case. [2] 3. A libel is a malicious defamation, made public either by printing, painting, writing, signs, or pictures, tending to blacken the memory of one who is dead, or the reputation of one who is living, and to expose him to public hatred, contempt, or ridicule. Root v. King, 7 Cow. (N. Y.) 613; Newell on Defamation, Slander and Libel, § 3. [3] Forgery is the false making or material altering, with intent to defraud, of any writing, which, if genuine, might apparently be of legal efficacy, or the foundation of a legal liability. Black's Law Dict. (2d Ed.) 513; State v. Wheeler, 20 Or. 195, 25 Pac. 394, 10 L. R. A. 779, 23 Am. St. Rep. 119. [4, 5] To charge a person in writing with forgery is actionable per se. 25 Cyc. 282. A person charged in a civil action with libel may defend by alleging and proving that the alleged libelous words used by him were Section 92, L. O. L.; Upton v. Hume, 24 Or. 431, 33 Pac. 810, 21 L. R. A. 493, 41 Am. St. Rep. 863. The defendant in his answer alleges that the plaintiff did forge the name or signature of the Scudder Syrup Company in indorsing the check referred to, supra, given by Allen & Lewis, and that what he said in relation thereto was true, etc. The verdict of the jury is in effect a finding that the charge of forgery made by the defendant against the plaintiff is false and malicious. [6] Section 3 of article 7 of the Constitution, adopted in 1910, in part is as follows: "In actions at law, where the value in controversy shall exceed $20.00, the right of a trial by jury shall be preserved, and no fact tried by a jury shall be otherwise re-examined in any court of this state, unless the court can affirmatively say there is no evidence to support the verdict." This constitutional provision is a standing inhibition, binding upon every court, against re-examining any fact that has been tried by a jury, unless the court can say affirmatively and conscientiously that there is no evidence to support the verdict. As held in many decisions of this court, the evidence necessary to support a verdict is legal evidence, and it must tend to prove every material fact as to which the party, in whose favor it was rendered, had the burden of proof. When, however, there is no evidence to support a verdict, it is the duty of the court, when properly asked to do so, to set it aside. [7] 4. The question for determination on this appeal is as to the sufficiency of the evidence to support the verdict. If there is any evidence to support the verdict, the mo tion for an instructed verdict in favor of the defendant was properly overruled. [8] The defendant accused the plaintiff of the crime of forgery, and the words used in making said charge are actionable per se and imply malice. The defendant admits writing the letter and making the charges, and asserts that what he charged is true, and that he acted in good faith in making the charges. The facts, briefly stated, are: The Scudder Syrup Company had a claim against Allen & Lewis that was partly disputed. The plaintiff was not at that time (November, 1911) in the employ of the company, but he was residing in Portland. The defendant, as president of the Scudder Company, wrote the plaintiff, asking him to call upon Allen & Lewis and adjust that matter for them. The plaintiff, as requested, called on Allen & Lewis and made a settlement of the disputed account, and it was ascertained that Allen & Lewis owed the Scudder Syrup Company a balance of $89.12. In payment thereof, Allen & Lewis delivered to the plaintiff a check for that amount, payable to the order of the Scudder Syrup Company. It had been agreed between the company and the plaintiff that the latter should begin work again for the company in January, 1912. The plaintiff was then out of employment, and was waiting for the time to come when he was to begin work for the comany. He had worked for it in the past. The check was drawn on a Portland bank. Instead of forwarding the check to the Scudder Syrup Company, the plaintiff, on the day that he received it, wrote the company that When the plaintiff was testifying, after he he had adjusted the claim against Allen & had told of the indorsing of the check and Lewis, and that the latter company had giv-depositing it in the bank, and asking the en him a check for $89.12 in payment of the company for leave to use the money, a juror balance due. In his letter he asked the asked him whether he always did it that Scudder Syrup Company to permit him to way, and he answered: "I have done that in use this money as an advance on his salary | at least one other instance, and it was satfor January and February. The company isfactory." This statement was not denied received his letter, and on November 28, 1911, by any evidence. That statement seems to eight days after the check was drawn, it, by mean that he had in at least one other inits bookkeeper, wrote the plaintiff, acknowl- stance indorsed and applied a check of the edging the receipt of his letter of Novem- company in the same way that he did in this ber 20th, and saying that the company had instance, and that his acts in doing so were credited Allen & Lewis with the check for satisfactory. This is a circumstance tend$89.12, that they had given him, and that ing, to some extent, to show that the comthe company had charged the amount of said pany had previously permitted him to indorse a check. check to the plaintiff's personal account. On December 1st the defendant also wrote the plaintiff, acknowledging receipt of the plaintiff's letter of November 20th, and saying inter alia: "I note that Allen & Lewis gave you $89.12, and this amount you want to use temporarily, which is satisfactory," etc. 5. One of the material facts necessary to constitute the crime of forgery is an intent dorsed the check, acted in good faith and to defraud. If the plaintiff, when he inbelieved that he had a right, as agent of the company, to indorse it, and did not intend to defraud any one, he did not commit Thus it appears that the plaintiff, on the the crime of forgery. The signing of anothday that he received the check, wrote the er's name to a note or a check without aucompany that he had received it, stating the thority is not necessarily forgery. amount, and for what it was given, and ask-stitutes that offense only when it is done ed the company to let him use it as an ad- with intent to defraud. vancement on salary or as a loan, and that the company and the defendant wrote the plaintiff that that was satisfactory, and charged his personal account with the amount thereof. The facts show that the company advanced or loaned the amount of the check to him at his request, knowing that he had received it in payment to the company of the [9] The question whether the plaintiff indorsed the check with intent to defraud was a question of fact to be determined by the jury from the circumstances relating to the act, as shown by the evidence. It was the province of the jury, and not the court, to determine whether the plaintiff indorsed the check in question with intent to defraud. In People v. Wiman, 148 N. Y. 33, 42 N. E. 409, the court says: "Criminal intent is essential to constitute the crime (forgery), and the testimony bearing thereon is always a question for the jury." In State v. Bjornaas, 88 Minn. 305, 306, 92 N. W. 982, the court says: As "It is elementary that the animo furandi, or intent to defraud, is an essential element of the crime of forgery, or of uttering a forged instrument, which is to be proved or inferred from facts' reasonably tending to establish a guilty purpose, and may be negatived by evidence show* ing the absence of such an intent. stated in a case very similar on the facts to the one at bar: Where the intent to damage or defraud is a salient and essential part of the case, such intent is not an irrebuttable presumption of law, but is an open question for the jury, to be determined by the facts and circumstances in proof, for the signing of another's name without authority is not necessarily forgery." Allen & Lewis account. The plaintiff concealed nothing from the company in relation to the check. The defendant, notwithstanding these facts, claims that the plaintiff was guilty of forgery in indorsing the name of the company on the back of the check and his own name closely under the company's name, without the word "per" or "by" before his name and without stating that he acted as the company's agent. The defendant testified that no one had authority to indorse checks for the company, except its officers. It appears from the evidence that the plaintiff indorsed the check before he received letters from the company or the defendant telling him that it was satisfactory for him to have the money as he had requested. The check, after its indorsement, was placed to the plaintiff's credit at Ladd & Tilton's bank, where he did his banking business. He wrote the company's name on the back of the check in his ordinary handwriting, without any disguise, and wrote his own name below it in the same handwriting. In his evidence he says that he indorsed the check as agent of the company, and he appears to have thought that, by writing the company's name and his name immedi- says: ately below it on the back of the check, he "The charge given by the court cannot be In Agee v. State, 113 Ala. 57, 21 South. 208, the court says, referring to a charge given to the jury: "This charge withdrew from the jury all consideration of one of the ingredients of the ofwhich was a matter of inference from the facts fense alleged (forgery), the intent to defraud, before them, to be drawn or rejected by them, as those facts might seem to them to require." In Gooden v. State, 55 Ala. 180, the court |