Clark v. Adney

In Banc. This action, which is predicated upon a promissory note, is brought by J.E. Clark, to recover a judgment against defendant Lizzie Adney, as maker of the note, and E.R. Boyce and W.T. Sherman, as indorsers thereof.

The plaintiff, owner and holder of the note, alleges, in substance, that, on February 18, 1927, defendant Lizzie Adney, for value, made and delivered to defendant Boyce her certain promissory note, in writing, by the terms of which she promised to pay to the order of Boyce, on demand, $350, with interest at 7 per cent per annum from date until paid, and attorney fees in case suit or action should be instituted to collect the note; that Boyce thereafter indorsed the note and delivered it to defendant Sherman, who, for value, indorsed and delivered it to plaintiff. He further alleges:

"That prior to the institution of this action demand was made by the plaintiff upon the maker thereof for payment, and presentment of said note was made, and the maker thereof refused and neglected to pay the same and notice of such refusal and nonpayment was made to the defendants E.R. Boyce and W.T. Sherman, and the said defendants * * * have wholly failed and refused to pay said note, or any part thereof * * *."

Plaintiff demands judgment against the defendants for $350, with interest at 7 per cent per annum from February 18, 1927, for attorney's fees in the sum of $50, and costs.

Defendant Sherman, answering, filed a general denial, and for a further and separate answer alleged that the note in question was given by defendant Lizzie Adney to defendant Boyce "in payment of the purchase price of said E.R. Boyce's equity in the following described premises, to-wit: [Here follows description of land]:"

He further alleges that, at the time of the execution and delivery of the note to Boyce as aforesaid, defendant Adney likewise executed and delivered to Boyce an agreement in writing, duly witnessed and acknowledged, granting a lien upon the equity so purchased by her from Boyce. He then alleges facts relating to the assignment, delivery and ownership of the note, as set forth in the complaint. He alleges that Clark, the plaintiff, accepted the note and the agreement mentioned, "but failed and neglected to record the same, and by reason of said failure and neglect of said plaintiff to record said agreement * * *, said property has been transferred to other parties and said security lost to this defendant, and by reason thereof this defendant should be discharged from all liability upon said note, or any part thereof."

The plaintiff, by his attorneys, moved the court for a judgment upon the pleadings. With respect to attorney's fees, the court held "that plaintiff is not entitled to the recovery of any sum whatsoever as an attorney fee in said action, because of the denial in said action of the reasonableness of the attorney fee alleged in the complaint." With this exception, judgment was rendered for plaintiff and against defendant Sherman in accordance with the prayer of the complaint. From this judgment the named defendant appeals. The defendant assigns error of the court in giving judgment on the pleadings, on the ground that the complaint failed to state facts sufficient to constitute a cause of action against an indorser of a promissory note. As to the sufficiency of the complaint, no objection was made in the lower court. In the opinion of the writer, if the averments of a complaint are not sufficiently certain and specific it is the duty of the defendant to move against the pleading in the lower court. And, while this question may be raised in this court for the first time, when so raised every reasonable inference or intendment should be invoked to support the complaint. See Dippold v. Cathlamet Timber Co.,98 Or. 183 (193 P. 909), where we wrote:

"We recognize the rule that when a complaint reaches this court without having been demurred to or moved against in any way, every reasonable inference or intendment should be invoked to support it [citing many cases]."

The defendant has cited Case v. McKinnis, 107 Or. 223 (213 P. 422, 32 A.L.R. 167). We agree with the doctrine therein announced, and the proceedings in the cause at issue are in harmony therewith.

Based upon the averments of the complaint in this case, and the admissions by the answering defendant, the trial court was authorized to enter judgment in favor of the plaintiff. As to the power of the court to render judgment upon the pleadings, seeWillis v. Holmes, 28 Or. 265 (42 P. 989); Hirsch v. May,75 Or. 403 (146 P. 831); Owen v. Leber, 112 Or. 136 (228 P. 927).

This case is affirmed.