Second Northwestern Finance Corp. v. Mansfield , 121 Or. 236 ( 1927 )

Rehearing denied April 5, 1927.

On Petition for Behearing.

(254= Pac. 1022.)

Plaintiff has presented a petition for rehearing claiming .that this court erred in not passing specifically on the numerous assignments of error based on the Circuit Courtis refusal to give instructions requested by plaintiff. Although the petition for rehearing presents no new question, yet because plaintiff so sincerely contends that said assignments of error were not considered we have deemed it proper to máke the following comments on said petition:

First, plaintiff earnestly contends that we should have given attention to its requested instructions to the effect that stock in a corporation would be sufficient consideration for a promissory note. It recites the fact that the principal witness for the plaintiff testified that he knew the note involved was given for corporate stock. There is no pretense on the part of defendant that stock in a corporation would not be sufficient consideration for the note. On the contrary, defendant concedes that. The defense was that the note was given for stock in a corporation to be thereafter organized; that the proposed corporation never was organized; that said note was not to be used in any manner or treated as an obligation until said proposed corporation was organized and the stock issued. Defendant’s contention was that because the proposed. corporation never was organized, and no stock was ever issued, there was no consideration for the note. Defendant further contended that the payee of the note never had authority to negotiate the note. Defendant also contended that the president who represented the plaintiff knew all those facts before it purchased the note. In the instructions the court clearly assumed that capital stock of a corporation was a good consideration for a promissory note, and instructed the jury clearly that unless they found that the facts represented by the defendant in its answer existed, and that the plaintiff had knowledge of those facts before purchasing the note, the plaintiff should recover. The situation is similar to this illustration: If the note had been executed by the defendant and left with the payee for the sole purpose of borrowing money from the plaintiff; if the plaintiff had knowledge of that fact but did not loan the money, and knew that the payee of the note had no authority to negotiate the note for any other purpose, the defendant would not be liable if the plaintiff purchased the note from the payee without advancing the money. If such were the state of facts, it would not be necessary for the court to instruct the jury that money would be a good consideration for a promissory note. So in the instant case it was not necessary or proper for the court to instruct the jury that capital stock of a corporation was sufficient consideration for the promissory note because that was not in controversy in the case. That corporate stock is sufficient consideration was assumed by the court and not questioned by defendant as clearly appears from the record.

Instructions should not be given on matters not in controversy. A jury is likely to be confused rather than informed by instructions on matters not in issue. Instructions should be confined to the issues and given in as plain and simple language as possible to cover the theory of the parties to the litigation. The petition for rehearing is denied.

Rehearing Denied.

Burnett, C. J., and McBride and Rand, JJ., concur.