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Plaintiff alleges that on April 13, 1915, before , subject to the same defenses as if it were nonthe note was due, “W. E. Davidson & Co. for negotiable; but a holder who derives his title a valuable consideration duly sold, indorsed, through a holder in due course, and who is not

himself a party to any fraud or illegality affectand delivered the said promissory note to the ing the instrument, has all the rights of such plaintiff.” Defendant denies this, and alleges former holder in respect of all parties prior to in his answer:

the latter." "That the plaintiff in this action, on or about It being shown that the plaintiff was the March 20. 1915, and prior to his alleged purchase holder of the note in question, the court of said alleged promissory note, had notice and knowledge of all the matters alleged in this an-charged the jury in part that it is a presumpswer, and that plaintiff's alleged purchase of tion of law that the plaintiff is a holder in said 'alleged promissory pote set forth in plain due course, and defined such holder accordtiff's complaint was and is made for the pur ing to section 5885, instructing as follows: pose of assisting and aiding the said L. E. Bedwell and Lawrence Keyt in the collection and

“Under the issues made in this case the title enforcing of the alleged promissory note set of the person who negotiated the note would be forth in plaintiff's complaint, and for no other defective if he obtained the instrument or the purpose."

signature of the maker thereto by fraud or other

unlawful means" [2] This is denied by the reply. We think the issues in respect to this point advanced -and also: the case to the proof, and are sufficient after

"If it bas been shown by the evidence in this verdict. Although defendant averred that the instrument was defective, the burden is on

case that the title of the person who negotiated plaintiff had notice of the facts upon which the holder to prove that he acquired the title as he relied as constituting a defective title to a holder in due course.' the note, this being denied by the plaintiff The court also instructed the jury as to raised the issue, which was tried out without what constituted a notice of an infirmity in objection as to the form of raising the same. an instrument in accordance with section L. 0. L. & 72; Fisk v. Henarie, 13 Or. 156, 5889, L. O. L, and charged as follows: 9 Pac. 322; Ready v. Schmith, 52 Or. 196,

"If you find that the plaintiff is a holder in 95 Pac. 817; Rumble v. Cummings, 52 Or. due course, within the meaning of the law as I 203, 95 Pac. 1111; Weishaar v. Pendleton, have given it to you, then I instruct you that

he holds the note sued on free from any defect 73 Or. 190, 144 Pac. 401. Section 5885, L. 0. l of title of prior parties, and free from defenses L., declares who is a holder in due course as available to the defendant as against any other follows:

parties to the instrument, and that the plaintiff "A holder in due course is a holder who has may enforce payment of the instrument against taken the instrument under the following con- the defendant for the amount thereof." ditions: (1) That it is complete and regular up The instructions as to the plaintiff being a on its face; (2) that he became the holder of it purchaser of the note in good faith were before it was overdue, and without notice that it bad been previously dishonored, if such was based upon the provision that if "the evithe fact; (3) that he took it in good faith and dence shows that said note was assigned to for value; (4) that at the time it was negotiated him in good faith for a valuable considerato him he had no notice of any infirmity in the tion before the maturity of the note,” the instrument or defect in the title of the person jury could so find. The charge was in acnegotiating it." Section 5892 reads thus:

cordance with the sections of the Code above "Every holder is deemed prima facie to be a

mentioned. holder in due course; but when it is shown that [3] The main contentions on behalf of dethe title of any person who has negotiated the fendant in regard to the charge to the jury instrument was defective, the burden is on the to which exceptions were saved are that the holder to prove that he, or some person under whom he claims, acquired the title as a holder in issues made by the pleadings did not warrant due course; but the last-mentioned rule does the submission of the question of whether the not apply in favor of a party who became bound plaintiff was a holder in due course of the on the instrument prior to the acquisition of note in suit, that the proof showed that the such defective title. It is enacted by section 5889:

note was given to W. E, Davidson & Co., a "To constitute notice of an infirmity in the fictitious person, and that it did not appear instrument or defect in the title of the person that defendant knew that such name was negotiating the same, the person to whom it is that of a fictitious or nonexisting person, but negotiated must have had actual knowledge of that the contrary was shown. The basis the infirmity or defect, or knowledge of such facts that his action in taking the instrument for this claim is that it was intended by Mr. amounted to bad faith.”

McCrow, the maker of the note, to make the See 3 R. C. L. p. 1066, § 271. Section 5890 same payable to W. E. Davidson & Co., who defines the rights of a holder in due course

was the owner of 15 shares of stock in the thus:

Pacific States Fire Insurance Company of “A holder in due course holds the instrument Portland, Or., which shares it was proposed free from any defect of title of prior parties, and to sell to defendant; that as W. D. Davidson free from defenses available to prior parties & Co., the indorser of the note to plaintiff, among themselves, and may enforce payment of the instrument for the full amount thereof did not at that time own any such shares of against all parties liable thereon."

stock, therefore W. E. Davidson & Co. was Section 5891 provides that:

not the person defendant intended to make "In the hands of any holder other than a the note payable to; that the title to the in

or any one; and that the note was not a val., plaintiff in purchasing the note was fully id one even in the hands of a holder in due contested, and that what was paid therefor course, Section 5842, L. O. L., declares in and all the circumstances relating thereto part:

were explained to the jury. Plaintiff ap "The instrument is payable to bearer • peared as a witness in the case, but it is not (3) when it is payable to the order of a fictitious shown that his evidence in full is contained or nonexisting person, and such fact was known in the bill of exceptions. In the absence of to the person making it so payable.

a showing in the record that there was no The court declined to instruct as to the evidence upon which to predicate the inlaw concerning a fictitious person, for the structions complained of, it must be prereason that W. E. Davidson appeared as a sumed that such testimony was introduced. witness and testified that he indorsed the Error will not be presumed. note in the name of W. E. Davidson & Co.,

[7] Upon the trial Garnet McCrow, son of in which he did business. As there was no defendant, appeared as a witness. He was contradiction of that evidence, the court held asked if he had a conversation with Mr. that the law applicable to a fictitious person Keyt after the time of the execution of the was not pertinent to the case. The trial note, and he answered in the affirmative, court was correct in this conclusion The

stating that be thought it was on April 12, fact that W. E. Davidson & Co. did not own 1915, at his home. To the question, "State stock in the Pacific States Fire Insurance to the court now what the conversation was,” Company was a circumstance to be taken counsel for plaintiff objected as incompetent, into consideration in the matter of the al- immaterial, and irrelevant, and a matter leged false representations; but such fact after the transaction was closed. Thereupon would not constitute W. E Davidson & Co. a counsel for defendant stated: fictitious or nonexisting person.

If A. exe

"If the court please, it is like this: They are cutes a negotiable promissory note to his claiming a W. E. Davidson & Co. was the owner neighbor B. in payment for a band of cattle of this note, and Mr. Keyt was trying to arrange agreed to be sold to A. which A. is led to a disposal of that note to Mr. McCrow. That

is what we wish to show.

This, of believe B. owns, and if it should be found course, occurred the day before Hill claims to that in fact B. did not own the cattle, that have got the note.” would not make B. a fictitious or nonexisting The court sustained the objection, to which person. It does not appear that the note in an exception was saved. The record does question was intended to be given to ficti- not disclose what the answer of the witness tious person. The nonownership of the block would have been had he answered. The ofof stock by W. E. Davidson & Co. was a cir- fer is a general statement of the fact that cumstance, in regard to which defendant had it was expected to show, but it does not apthe right to and did introduce evidence as pear whether the evidence of the witness bearing upon the question of the defective would prove such fact or not. See Columbia ness of the title to the note, but it did not Realty Investment Co. V. Alameda Land Co., involve the law as to a fictitious or nonexist- 168 Pac. 440. We cannot say from the recing person.

There was no error in the ord that there was any material evidence excourt's so ruling.

cluded, or that there was any prejudicial er[4] By executing a promissory note, the ror. maker engages to pay the amount therein The other assignments of error are based named to the payee or order, if it be pay- upon the request of counsel for the defendable to a particular person or order. By ant to give instructions appropriate to dethe very act of engaging to pay to a par- fendant's position that W. E. Davidson & ticular payee he acknowledges his capacity Co. was a fictitious person, which has alto receive the money, and also his capacity ready been referred to. For the reasons to order it to be paid to another. Section suggested the requests, which were not cov5893, L. 0. L.

ered in substance by the charge to the jury, (5, 6] Objection and exception to the in- were properly refused. The principal quesstruction given to the jury is also predicated tion in the case was one of fact for the jury. upon a want of evidence tending to show It is not claimed that as a matter of law that defendant was a bona fide purchaser the charge to the jury was incorrect. of the note for value. All the testimony is Finding no error in the record, the judgnot contained in the record. What is dis- ment of the lower court is affirmed. closed by the bill of exceptions, in the light of the oral arguments of counsel, indicates MOORE, BENSON, and McCAMANT, JJ., that the question of the good faith of the concur.

(87 Or. 256)

city of Seaside, adopted at a special elecGRIMES V. CITY OF SEASIDE et al. tion held February 28, 1912, will be made, (Supreme Court of Oregon. Jan. 29, 1918.) nor will the proceedings undertaken by the 1. MUNIOIPAL CORPORATIONS Cw410(2)— make the improvement be alluded to, since

council of that municipality, to initiate and STREET IMPROVEMENTS-JURISDICTION.

Where plaintiffs deeded land to the public it is conceded that the clauses of the organic as a highway and the dedication was accepted law of that city and of the ordinances and by the county court, and they later deeded an resolutions enacted and adopted pursuant extension on condition that the county road should be vacated, and stood by without objec- thereto were strictly obeyed, except in one tion while the city improved the street, the instance hereinafter mentioned. city had jurisdiction to assess on the abutting land the cost of improving the street as a city of the city of Seaside, which was received

Broadway street is represented on the map and not a county road. 2. MUNICIPAL CORPORATIONS OM330(4)– in evidence, as commencing on the east at

STREET IMPROVEMENTS - SPECIFICATIONS O'Hanna creek, thence west crossing the PATENTED ARTICLE.

Necanicum river to the Pacific Ocean. The The city does not, by specifying patented paving, make an illegal contract, where the highway immediately east of the Necanicum owner of the patent offers to permit its use on river and extending northerly and southerly reasonable terms by any other person.

and nearly parallel therewith is designated 3. MUNICIPAL CORPORATIONS 483(1) as Seventh street, which has been held to be

STREET IMPROVEMENTS LIEN DOCKETS-
SUFFICIENCY.

a county road. Cole y. Seaside, 80 Or. 73, Where the lien docket showed the names 156 Pac. 569. of persons, the description of the land and the

The evidence shows that E. M. Grimes, amount of the assessment and the manner and C. C. Grimes, and S. K. Stanley and the wife time for its payment, it was sufficient, although it did not expressly state that the persons named of each, respectively, on June 29, 1892, exewere severally the owners of the real property, cuted to the public a deed conveying as a nor that the sums named after the description highway a strip of land 30 feet wide, being of land were the amounts respectively imposed 15 feet on each side of a center line, beginupon the lands described. 4. MUNICIPAL CORPORATIONS 559—STREET ning at a point in the middle of the county IMPROVEMENTS--LIEN-FORECLOSURE.

road (Seventh street) opposite the middle of Under Seaside Charter, empowering the city the east end of the bridge across Necanicum to sue for the cost of improvement and to have a lien therefor decreed on the premises, the river; thence westøto the middle of the east city was authorized to have a foreclosure of a end of such bridge; thence crossing the river lien of a special assessment for paving street.

to a post on the west bank thereof about 80 Department 2. Appeal from Circuit Court, feet north of the west end of the bridge; Clatsop County; J. A. Eakin, Judge.

thence west 200 feet; thence north 100 feet, Suit by G. M. Grimes against the City of more or less, to the intersection of the middle Seaside and others. From a decree for de- of Pine street extended eastward; and thence fendants, plaintiff appeals. Affirmed.

westward along the latter street to low-tide

line of the Pacific Ocean. Such conveyance This is a suit by G. M. Grimes against the

was made upon condition that Clatsop couhcity of Seaside, a municipal corporation, and ty would, within a specified time, build a G. E. Shaver, its then marshal, to annul substantial bridge across the Necanicum riva contract for the paving of a part of Broad

er on the designated line. way street, formally known as Bridge street,

C. A. McGuire and his wife, on July 5, to enjoin proceedings for the collection of a 1892, also executed to the public a deed to a delinquent assessment, and to cancel the

strip of land 15 feet in width bordering upon docket of city liens. From a decree declar- Broadway street, but as this tract is situate ing the assessment valid, the lien thereof sub- east of the Necanicum river, no attention sisting, foreclosing such incumbrance and need to be paid to such conveyance. The 30directing a sale of the land benefited by the foot strip of land described in the deed exeimprovement, the plaintiff appeals.

cuted by E. M. Grimes and others to the H. H. Riddell, of Portland (H. Daniel, of public was surveyed June 8, 1893, as appears Portland, on the brief), for appellant. Vic- from copy of the field notes and a blueprint tor J. Miller, of Seaside, and A. C. Fulton, of the map thereof, which show that the midof Astoria (G. C. & A. C. Fulton, of Astoria, dle line of the bridge across the Necanicum on the brief), for respondents.

and for a distance of about 150 feet from the

west bank of that stream was run south 83° MOORE, J. It is contended that the munic- 506 west, thence west 200 feet; thence north ipality was without jurisdiction to make 139 feet to Pine street; and thence west the improvement, or to levy a special as- along that street to the Pacific Ocean. sessment for any part of the cost thereof upon The records of the county court of Clatadjacent land only because the highway un- sop county show that on July 6, 1892, a firm dertaken to be benefited is a county road of contractors offered to build a bridge across and subject to the control of the county that river for the sum of $1,630, which bid court of Clatsop county, Or. No reference was accepted, and it is conceded that the to any of the provisions of the charter of the structure was thereafter completed.

By reason of the uncertainty of the points any contractors having adequate machinery of beginning of the highway at Seventh to use its patent right and trade mark upon street, a resurvey of the line west thereof equal conditions, which authority is of simi. was completed April 20, 1905. Field notes lar import as set forth in the case of Johns and a map of the survey were filed in the v. City of Pendleton, 66 Or. 182, 133 Pac. 817, office of the county clerk six days thereafter. 134 Pac. 312, 46 L. R. A. (N. S.) 990, Ann. A blueprint of that map was received in evi-Cas. 1915B, 454. Thereafter plans and specidence and from an examination of such du- fications of the proposed improvement were plicate the course from the beginning point duly made and filed, and notice published is indicated as N. 89° 58' west to the east that the contract would be let to the lowest end of the bridge on the Necanicum river; responsible bidder, and at the time so desigthence N. 77° 30' W. 456.12 feet; thence N. nated the Warren Construction Company, a 89° 29' W. 146.4 feet to the former line which different corporation from that of Warren extending north intersected Pine street. The Bros. Company, being the lowest bidder for county court on May 6, 1909, ordered that furnishing the material and performing the the dedication and plat of such survey be work, and possessing proper facilities, was recorded, and that the bridge be changed as awarded the contract. soon as possible.

[2] It is maintained that prescribing in The plaintiff, G. M. Grimes, his wife, and the ordinance and specifications the use of others, on June 1, 1908, executed convey- a patented article, thereby excluded comances, dedicating an extension of Bridge petition and hence the contract is void as street west of the Necanicum, upon condi- creating a monopoly. This question is so comtion, however, that the county road should pletely answered by Mr. Chief Justice Mcbe vacated. It was the purpose of these Bride in Johns v. City of Pendleton, supra, a grants to give to the public a right to the case involving similar facts, that no further use of Broadway street, as indicated on the elucidation is deemed essential or will be plat of Seaside, extending west of the stream made, except merely to refer to the cases of to the Pacific Ocean. An examination of the Sherrett v. Portland, 75 Or. 449, 147 Pac. 382, courses noted on the blueprint, evidencing and Temple v. Portland, 77 Or. 559, 151 Pac. the resurvey, discloses that commencing at 724, where it was held that there can be no the west end of the bridge the line extends valid objection made to the specification of a northwesterly, while the street as dedicated patented pavement, if the patentee offers to runs west, and that one tract of the plain- all bidders alike the right to make use of the tiff's land which was assessed for the im- protected article upon reasonable terms. provement lies south and two other parcels It is argued that the entry of the assessare situate north of Broadway, which street ment for the improvement of the street in in front of his premises that border thereon the Docket of City Liens was insufficient to is located wholly south of the line of the create an incumbrance upon the plaintiff's highway as resur yed April 20, 1905, so that land, and, this being so, no authority existed no part of the improvement abutting upon for decreeing a foreclosure of the alleged his premises was made upon the county road. claim. Section 42 of the organic law of Sea

[1] Whether such highway was ever legal- side declares: ly adopted or vacated is not necessary to a “When a special assessment shall bo condecision herein, for the plaintiff knew that firmed, the auditor and police judge shall inBroadway street, which was widened by his dorse a certificate thereof upon the roll, show

ing the date of confirmation. When any special consent, was being improved, and until the assessment shall be confirmed by the council, it work was fully completed he never applied shall be final and conclusive. All special 'asto the court to prevent the betterment of his sessments from the date of confirmation thereof

constitute a lien upon the respective lots or land. We conclude therefore, that the city of parcels of land assessed, and shall also bo a Seaside had jurisdiction to assess upon the charge against the person to whom assessed unabutting land the cost of improving Broad- til paid. Upon the confirmation of such assessway street west of the Necanicum river, and police judge to enter a statement thereof in

ment it shall be the duty of the auditor and that this street is not a county road.

the Docket of City Liens." By resolution of the common council of

Section 43 of the charter defines such dockthe city of Seaside, it was determined to let and prescribes that there shall be entered grade and improve Broadway street with therein"Gravel Bitulithic" pavement, making the "the following matters in relation to assessnecessary artificial stone curbs on each side, ments for the improvement of streets. 1. The installing catch-basins and providing for sur

name of the owner thereof, or that the owner is

unknown. 2. The number or letter of the lot face drainage. Warren Bros. Company, a

assessed and the number or letter of the block corporation, the owners of the patent right and the town or addition in which it is situated. for mixing and using bitumen and crushed or, if a tract of land, a description of the tract rock or gravel, according to a prescribed of land. 3. The sum assessed upon such lot or

tract of land and the date of entry. 4. The formula for road building and surfacing, and time and manner in which the assessment is to also the owner of the copyright name "Grav. be paid." el Bitulithic," mailed to the proper officer of A copy of that record was received in eviSeaside a "license agreement," permitting Idence, and as far as material herein, reads:

"Lien Docket Town of Seaside. Assessment The trial court was thus clothed with amof Bitulithic Pavement on Broadway West ple authority to declare that the lien subsist1,716.6 ft. Street Assessment No. 15 due and ed, to order a foreclosure thereof, and to dipayable the 29th day of Sept. 1914, G. M. Grimes. Beginning at the intersection rect a sale of the land. It follows that the of the north line of Broadway with the east line decree should be affirmed; and it is so orof Third street; thence east 176.47 feet to the

dered. west line of Fourth street; thence north 86.94 feet; thence west to the east line of Third street; thence south 86.84 feet to the place McBRIDE, C. J., and McCAMANT and of beginning, $798.82."

BEAN, JJ., concur. Two other tracts of land are assessed to him in the same manner, describing the

(89 Or. 53) premises with equal particularity and impos

MARSHALL et al. v. GUSTIN. ing a charge on each parcel respectively of

(Supreme Court of Oregon. Jan. 22, 1918.) $867.35 and $20.60, amounting to $1,686.77. A certificate appended to the docket states:

1. APPEAL AND ERROR 232(112)-MATTERS

REVIEWABLE-DEMURRER-GROUNDS. "That the above and foregoing assessment roll No. 15 was accepted and confirmed by Ordi- ning of limitations does not raise such ques

A demurrer on grounds other than the runnance No. 212. duly passed and approved on tion on appeal. the 29th day of September, 1914. “[Signed) J. L. Berry,

2. CANCELLATION OF INSTRUMENTS 37(1) "Auditor and Police Judge.”

DEMURRER-EQUITABLE JURISDICTION.

Where it appears inferentially that defend[3] It is argued that this record does not ant was holding land as a guardian when she state the name of the owner of any parcel of her at an inadequate price, a complaint was not

fraudulently prevailed upon plaintiffs to sell to land therein described, nor the sum assessed demurrable as not calling for equitable jurisupon any lot or tract, nor the time or man- diction, although the court might not be able to ner in which the assessment was to be paid. grant the specific relief prayed for. The lien docket does not in express terms de- 3. GUARDIAN AND WARD @ 123 – RECOVERY

OF PROPERTY-EQUITY OR LAW-INCONSIST clare that the names of the persons appearing ENT REMEDIES. at the left of the pages thereon are severally

Where defendant was appointed guardian the owners of the real property so described, of plaintiffs and of personal property in Oregon,

but not in Washington as to land there, and she nor state that the sums of money severally purchased such land from them fraudulently at placed at the right of the pages after each an inadequate price, equity had no jurisdiction description of land were the amounts im- of an action for the difference between the posed upon the premises. From the title of price received and the value of the land, it be that part of the book, as hereinbefore set affirm the transaction and sue for damages or

ing necessary in such case that plaintiffs either forth, and from the excerpts made therefrom, repudiate the bargain and call upon equity to these facts are fairly inferable from such place them in statu quo, but both remedies canrecord. Though the undertaking to improve not be had in one action. Broadway street was to create a lien upon

Bean, J., dissenting. the land benefited, and the proceeding was Department 1. Appeal from Circuit Court, in invitum, all the requirements that could | Multnomah County; Robert G. Morrow, have been of any advantage to the persons to Judge. be charged with the assessment were suffi Suit in equity by George Amos Marshall ciently complied with. Hamilton, Special and Lavina A. Marshall against Nellie GusAssess. & 710; Schweisau v. Mahon, 110 Cal. tin. Decree for plaintiffs, and defendant ap543, 42 Pac. 1065.

peals. Reversed and dismissed, without [4] It is insisted that the charter does not prejudice. authorize a foreclosure of such lien. Sec

This is a suit in equity. The substance of tion 45 of the municipal organic law con- the complaint is that the plaintiffs were two tains clauses as follows:

of the eight children of C. A. Marshall, who "The city of Seaside shall have power to bring suit in the circuit court of the state of died intestate, November 20, 1905, leaving to Oregon for Clatsop county against the owner his heirs, among other property, 75 acres of or owners of lot or lots, block or blocks, parcel land in Clarke county, Wash.; that the deor parcels of land upon which the cost of such fendant, who is a sister of decedent, was the improvements or repairs might or could have been charged or imposed, and which were bene- duly appointed guardian of the persons and fited thereby.

In any such suit so estates of the minor heirs, including plaininstituted all persons whose property is, or would be, so liable for the payment of any such tiffs, and, taking advantage of their youth proportion of the assessment aforesaid, shall be and inexperience, wrongfully and falsely joined as parties defendant in one action, and represented to plaintiff George A. Marshall the judgment rendered therein shall be a several that his undivided one-eighth of the land judgment in rem against each of said lots or parcels of land owned by each of the several de

was worth not to exceed $170, when in truth fendants for its proportion of the cost of the im- it was worth $1,000, and by reason of such provement and costs and disbursements, and the false representation obtained from him a lien therefor shall be decreed upon the prem- deed thereto for the consideration of $170; ises. The general laws of the state of Oregon that in like manner she secured from Lavina governing suits in equity, service of summons, and other process, shall apply to any such suit." | A. Marshall a deed for his undivided one

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