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sheriff had been notified by the plaintiff that ant Palmer, who claimed that the redempthe attempt to redeem was abandoned, and tion was invalid because not authorized by not to pay the money over to Garbade or his the plaintiff corporation; that, after looking attorneys. Thereafter this suit was brought the matter up, he concluded, in order to against the sheriff and all parties interested avoid question about the matter, to redeem in the fund to determine the ownership there- again. A meeting of the board of directors of. About the time it was commenced, Gar- was thereupon called, and a resolution pass. bade and his attorneys, Woodward & Palmer, ed authorizing the redemption. Notice was who had represented him in all the proceed served upon Garbade, and witness further ings involved in this controversy, and through testifies that on March 3d "I went to the whom the entire negotiations were conducted, sheriff's office to make this redemption. Mr. entered into an agreement to divide equally Garbade was represented by Messrs. Woodbetween themselves the money on deposit ward & Palmer, who appeared at that time. with the sheriff, and so they are all made par- The sheriff had obtained a certificate of deties to this suit. The decree of the court posit for the money paid him January 27, below was in favor of the defendants, and 1900, and at the time of the redemption on plaintiff appeals.
March 3d I simply added the accrued inter
est from the date of the last redemption, E. B. Watson and Frank Schlegal, for ap
and paid that in money to the sheriff. pellant. J. H. Woodward, W. E. Thomas,
Messrs. Woodward & Palmer appeared there, and W. D. Fenton, for respondents.
and asked if the sheriff had the money.
The sheriff said, 'Yes.' They said, 'Produce BEAN, C. J. (after stating the facts). The it.' The sheriff then produced the certitiplaintiff contends as a matter of law: (1) cate of deposit, and Mr. Palmer laughed, and That under the contract of May 10, 1899, said: "That don't go. You have got to probetween the Bridal Veil Lumbering Com- duce the money,--the cash itself,-and this pany and Garbade, the money in controversy, is money that has been paid in at a prior if the redemption from the Gilchrist sale is time. This certificate of deposit cannot be to be treated as valid, belonged to the lum- used,'-and then they left the sheriff's of. bering company, and, as its interest therein fice.
The same afternoon I tele. has been transferred to the plaintiff, it phoned Mr. Thielson that I thought I better should prevail in this suit; (2) that Garbade's | get the money and tender it to Messrs. refusal to accept the money, or to recognize Woodward & Palmer, or at least get the the validity of the redeníption, was a waiver cash and have the cash in his possession. I of any claim to it on his part, which became went to the Merchants' National Bank, and irrevocable when plaintiff notified the sheriff in about ten minutes Mr. Thielson came, and that the attempted redemption was at end, got the money, and I saw him take the monand not to pay it over to him. But we do ey in a sack.” Mr. Meyer, one of the depunot deem it necessary to consider either of ty sheriffs, testifies that about 2:15 or 2:55 these questions, because we are all agreed a certificate of deposit for $2,250.61 was takthat upon the facts the equities are with the en to the bank and cashed, and "I telephonplaintiff, and it is entitled to the relief de- ed to Mr. Palmer that the cash, amounting manded. The evidence shows beyond con- to $2,271.20, was at hand, and he replied that troversy that the defendants Woodward & he didn't care for that, as that was not the Palmer, who were the representatives and trouble, or words to that effect.” Mr. Duni. acted for the defendant Garbade in all the way, who was the attorney of the lumbering transactions, not only refused to accept the company, and assisted in drawing the conmoney deposited with the sheriff for the re- tract of May 10, 1899, between it and Gardemption, but insisted that such redemption bade, and who was very anxious to acquire was void until after Garbade had parted the title to the property for his clients, teswith all his interest in the property and had tifies that he thought the redemption was received all the money he was entitled to invalid, and that Garbade was entitled to a either on account of his judgments against deed to the property; that he and Woodward the plaintiff or the contract between himself went to the sheriff and his legal adviser, and the lumbering company of May 10, and tried to get him to execute a deed to 1899; and that they allowed and permitted Garbade under the Gilchrist sale, and threatthe property to be sold and conveyed by the ened to commence a mandamus proceeding plaintiff to the lumbering company under the to compel him to do so, but the sheriff rebelief, induced by their acts, silence, and con- fused to make such a deed; that afterwards duct, that Garbade had and would make no Mr. Bradley, the manager of the lumbering claim to the money deposited with the sher- company, concluded that it would be better iff for redemption. Mr. Joseph, attorney for to consider the second redemption as valid, the plaintiff, testifies that, although Garbade whereupon he and Bradley went to the of. and his attorneys were notified of the pur- fice of Woodward & Palmer, stated to them pose to redeen, neither of them appeared the views of the lumbering company, and reat the sheriff's office on January 27th, at quested them to withdraw and accept the the time the first redemption was attempted; money on deposit with the sheriff; but they that shortly afterwards he met the defend-objected to doing so, giving as a reason that the time might expire without redemption carry out that contract.' I remember sayfrom the $15 sale, and it would be well to ing to him, We will take whatever title you wait, and see whether or not a deed could have, and, if you haven't anything, we won't be obtained under such sale, before taking get anything from you, but we will take a any decided action in the matter of the at- deed from Mr. Garbade under that contract.' tempted redemption. It was thereupon un- But I said: 'In the arrangement we are derstood and agreed by Duniway and Wood- making with the Larch Mountain Investwari & Palmer that no further steps should ment Company the $2,370 that is in the sherbe taken by Garbade touching the attempt- iff's hands is to go to the credit of the Bridal ed redemption, but the money should be al- Veil Lumbering Company, and you ought to lowed to remain with the sheriff, so far as draw down that money yourself, or else you they were concerned, until after it was ascer- ought to give an order.' Either at the first tained whether Garbade would be able to interview or the second interview-I don't obtain a deed under the sale made on the know which-Judge Woodward said Mr. Gar$15 decree. And this, as Duniway says, was bade was at Oregon City, or somewhere out on the theory that the redemption was in- of town; and he said Mr. Garbade would have effectual, and that the refusal of Garbade nothing to do with the $2,370; that he had to accept the money would increase his “eq- not recognized it as a redemption, and that uities" under the sale on the $15 decree. he would maintain a consistent course, and
This was the condition of affairs when the wouldn't surrender the certificate, and negotiations referred to were entered into wouldn't give an order, and wouldn't draw between the Bridal Veil Lumbering Compa- | down the money himself, and give credit on ny and plaintiff, resulting in a contract by that contract. He said, 'You can pay your which the lumbering company agreed to pur money under that contract, and that money chase of plaintiff for $25,000 the land owned will take care of itself.' I said, 'If we pay by it, and which had been sold under the you the full amount under the contract, then Gilchrist judgment and under the $15 de- you people will turn up and claim the $2,370.' cree, to be paid or secured substantially as He said, “Mr. Garbade will have nothing to do follows: $1,000 down; the acceptance by with that, and has never recognized that as a Garbade of the money paid the sheriff to re- redemption.'" The result of this conversadeem the premises from the sale made on tion, together with Woodward's statements the Gilchrist judgment as a part of the and disclaimers, were by Mr. Fenton immediamount due him; the payment by the lum- | ately communicated to the representatives of bering company of the judgment in favor of the plaintiff. During the interview it was Garbade and against the plaintiff, amounting suggested that Mr. Fenton prepare such paat that time to $10,143; and the execution pers as he desired to have Garbade execute, and delivery of its promissory notes for the and send them over to Woodward's office. In balance. After the terms of the sale had pursuance of this arrangement the papers been agreed upon, and before the time for were prepared, and sent over on the morning redemption under the $15 decree had expir of the 21st, by Mr. Bradley, the manager of ed, Mr. Fenton, attorney for the lumbering the lumbering company, together with a note company, called upon Woodward in refer- , from Fenton requesting Woodward & Palmence to the matter, and, as he testifies, “com- er to have the two certificates of sale held municated to him, as the attorney for Mr. by Garbade assigned to Judge Watson, so Garbade, substantially the details of the that Watson could draw down the money in proposition made by the Larch Mountain In- the sheriff's hands, and that he and his wife vestment Company and the proposition of could quitclaim to the lumbering company. acceptance made by the Bridal Veil Lumber- Mr. Bradley testifies that he had quite a long ing Company. Judge Woodward said to me conversation with both Woodward and Mr. that he thought we were foolish in undertak- Palmer, and that they suggested that the ing to negotiate with these people until after lumbering company was very foolish to go the expiration of the year; that the year on with the negotiations, for the reason that would expire, as I remember, the 16th or they hoped to get title under the sale made 17th of June, or somewhere in that neighbor- in the $15 case, so that they could sell it to hood. * * I said to him that my cli- the company for $12,000, while under the ent, the Bridal Veil Lumbering Company, was contemplated arrangement it was paying not willing to stand upon that sale or rely | $25,000. “I told them that our board of diupon that title; that they desired to pur- rectors had held a meeting, and that we had chase from the Larch Mountain Investment discussed all these matters, and had decided Company, and end all litigation; that I had that from purely a business standpoint that some question as to the validity of that sale, we preferred to go ahead with these negotiaand as a business proposition my clients had tions and purchase the property, get possesconcluded to deal with the Larch Mountain sion of it immediately.
After arInvestment Company, at the same time keep- guing some time,
they said they ing their contract with Mr. Garbade. “Well,' were ready to close a contract if we paid he said, 'they may discover that this sale them the amount of money which was due has been made, and they may redeem, and upon it. I told them that in these negotiayou will deprive us of our opportunity to tions it was contemplated that part of this
money (I think the sum of $2,270 and some ward & Palmer, in their testimony, give a cents) that they should draw that from the slightly different coloring to the facts from sheriff, and should apply it in part payment that detailed by other witnesses, but there upon what we owed, -upon the $12,000 con- is really no substantial conflict. tract,--and that we were ready to pay them We have thus set out the testimony somethe balance; and their reply was that they what in detail, because, in our opinion, the would not have anything to do with this facts speak for themselves, and require no money in the sheriff's hands, but that, if we argument to show that the equities are all would pay the full amount down under their with the plaintiff. It is apparent from the contract with the lumbering company, they entire testimony that, so long as it was were ready to comply with it." The witness deemed to be to the interest of Garbade to further testifies that he went from there over deny the validity of the attempted redempto the office of the plaintiff, and informed its tion, and to refuse to accept the money paid attorneys of his conversation with Wood- to the sheriff for that purpose, his attorneys ward & Palmer, and what they were willing persistently and consistently occupied that to do. On the morning of June 21st, Mr. attitude; and, having assumed that position, Duniway, at the request of Mr. Fenton, had they ought not to be permitted to change it an interview with Woodward & Palmer in to the injury of the plaintiff, simply because reference to the proposed sale of the proper- it is to their interest to do so. It is an elety, and Duniway testifies that after consid- mentary principle that if one, by his state. erable conversation with Palmer he (Palmer) ments as to matters of fact, or as to his stated that Garbade would not execute the intended abandonment of asserted rights, inpapers which had been sent over by Mr. duces another to change his condition in reFenton, but that if the lumbering company liance upon them, he will afterwards be eswould pay to him $8,891.10, the balance due topped to deny the truth of the statements, on his contract with it, Garbade would ex- or to enforce his rights against his declared ecute certain deeds and assignments. The intention to abandon them. In short, one plaintiff was advised of this fact, and of the cannot play fast and loose, but, having taken negotiations between the representative of a particular position deliberately, he must the lumbering company, and Garbade con- act consistently with it, and cannot assume cluded that it could safely consummate the a contrary position to the prejudice of ancontract on the theory that Garbade made other. Shields v. Smith, 37 Ark. 47, and no claim to the money in the sheriff's hands. Bigelow, Estop. 713. This is the position the It thereupon conveyed the property to the defendants occupy in this case. By their lumbering company, and caused to be paid conduct and statements, as well as their sito Garbade, at the office of Woodward & lence when they should have spoken, they Palmer, about 5 o'clock on the afternoon of naturally induced the lumbering company June 21st, the balance due him under the and the plaintiff to believe that they did not contract of May 10, 1899, and Garbade con- intend to recognize or admit the validity of veyed to the lumbering company all his in- the attempted redemption, or make any terest in the property in controversy, and ex- claim for the money deposited with the sherecuted some other papers necessary to effect iff for that purpose. Having assumed that a complete settlement and adjustment of all attitude, and allowed the contract between matters between them. When it was ascer- the plaintiff and the lumbering company to tained that the deal would be consummated, be consummated under sueh a belief, he is the defendant Palmer, without the knowl- clearly estopped from afterwards changing edge of any of the other parties to the trans- his position to their injury. It is true, as action, went to the sheriff's office, leaving the defendant insists, that Woodward & the final consummation of the matter to Palmer, acting for Garbade, refused to conWoodward, and as soon as he (Palmer) was sent that he should transfer his certificates advised by telephone that the transaction of redemption, or give an order on the sherhad been closed, and the money paid to Gar- iff for the money on deposit with him; but bade, for the first time demanded the money it is also true that, although advised by Mr. of the sheriff previously deposited with him Fenton of the terms of the contract between by the plaintiff for the purpose of redeem- the plaintiff and the lumbering company, ing from the sale under the Gilchrist judg. they did not inform him, or any other witment. But one of the plaintiff's attorneys, ness in the case, that Garbade intended to two or three hours prior to that time, be- claim a right to the money in addition to the coming suspicious that some such plan was amount due him under the contract of May contemplated, had notified the sheriff not to 10th. When it was explained to Woodward pay the money over to Garbade or his at- that it was contemplated that the redemptorneys. All the transactions in reference tion money should be applied on the balance to the attempted redemption and all nego- due under such contract, Woodward did not tiations looking to the sale of the property say that the money belonged to Garbade, were had with Woodward & Palmer alone. but, on the contrary, stated to Fenton that Garbade did not personally appear in the he “would have nothing to do with the $2,matter until just a few moments before the 370, that he had never recognized it as a refinal papers were executed. Messrs. Wood- | demption, and that he would maintain a con
sistent course." The subsequent refusal to transfer the certificates or give an order on the sheriff for the money was in harmony with this declaration of Garbade's purpose and conduct. If it was intended that Garbade should claim the money on deposit with the sheriff, equity and fair dealing required that such intention should have been made known during the progress of the negotiations, and not, as the evidence clearly indicates, an attempt made to conceal his real purpose. The defendant Palmer's conduct in leaving his office at the time the money was ready to be paid to Garbade and hurrying up to the sheriff's office, and there waiting until advised that the transaction had been consummated, and then for the first time demanding the money, is most cogent and convincing proof that defendants knew that the plaintiff and the lumbering company had acted with the understanding and belief that the money in the sheriff's hands would belong to them, and not to Garbade. This action on the part of Mr. Palmer was not the result of a sudden impulse. It was attended with every evidence of a deliberate and thoroughly arranged plan. He took with him to the sheriff's office copies of all papers necessary, as he thought, to establish Garbade's claims to the money, and would probably have secured it had it not been for the previous notice to the sheriff by the plaintiff not to pay it over.
It is argued that the plaintiff's remedy is at law, and not in equity, and that the findings of the trial court on conflicting testimony should not be disturbed on appeal. No objection to the jurisdiction was made in the court below, but, on the contrary, the defendants answered, asking affirmative relief, and so waived that question. Kitcherside v. Meyers, 10 Or. 21; O'Hara v. Parker, 27 Or. 156, 39 Pac. 1004; Municipal Security Co. v. Baker Co., 33 Or. 338, 54 Pac. 174. The effect to be given to the findings of the trial court on an appeal from a decree was considered, and the true doctrine announced, in Nessley v. Ladd, 29 Or. 354, 45 Pac. 904. There is nothing in the opinions in Willis v. Smith (Or.) 58 Pac. 527, or Browning v. Lewis (Or.) 64 Pac. 304, to conflict therewith.
The decree of the court below will therefore be reversed, and one entered here for the plaintiff.
(41 Or. 587)
HARMON v. DECKER. (Supreme Court of Oregon. March 10, 1902.) BOOKS OF ACCOUNT-EVIDENCE-ORIGINAL
1. Successive entries in a pass book, the first purporting to be two years before the second, with a year intervening between each of the others, are not admissible as original entries; it appearing by bill of particulars attached to complaint that many other items intervened, thus showing the entries were only summaries copied from ledger.
1 For opinion on rehearing, see 68 Pac. 1111.
2. Entries in a pass book being inadmissible, because not original, writings offered only to corroborate them are properly rejected.
3. An administrator may contradict entry in decedent's books, and show that an item of charge designated as a note should have been a statement of goods sold and delivered.
4. An administrator in his complaint having alleged that an item of charge in decedent's books designated as a note should have been for goods sold and delivered, and having failed to show by original entries or otherwise why defendant should have been charged with such item, it is properly excluded.
5. Charges in decedent's accounts to defendant, to cash advanced to, and checks in favor
of, other persons, should be excluded, the entries not showing that they are for moneys loaned defendant or furnished others on his orders.
Appeal from circuit court, Josephine county; H. K. Hanna, Judge.
Action by C. E. Harmon against Charles Decker. From the judgment, plaintiff appeals. Affirmed.
This is an action by C. E. Harmon, as administrator of the estate of Horace Gasquet, deceased, to recover the sum of $2,908.80, alleged to be due on an open account for goods, wares, merchandise, and other property sold and delivered by the deceased to the defendant, a copy of which is made a part of the complaint. It is averred that an item of said account dated December 31, 1889, and designated therein as a "note," for the sum of $5,448.51, was for merchandise and buildings purchased by defendant from Gasquet, which, by their mutual consent, was merged in said account; that plaintiff is informed and believes, and therefore alleges, that no note was ever executed therefor, but that interest on said account was charged from time to time by agreement of Gasquet and the defendant. The answer having put in issue the material allegations of the complaint, a trial was had resulting in a judgment for plaintiff in the sum of $382.14, from which he appeals.
R. G. Smith, for appellant. A. C. Hough and A. S. Hammond, for respondent.
MOORE, J. (after stating the facts). The account began December 31, 1889, when the defendant was credited with sundry items, and charged, among others, as follows: "To amount of note, $5,448.51; to interest on same for 14 months, at 6% per annum, $381.39; to cash advanced Karewski, $300.00; to cash advanced to Nunan, $200.00; to bal. due from 1889, $4,803.50." This remainder is carried over to 1890, and the defendant is charged therewith, and also as follows: "Int. bal. on note, $288.21;" leaving due from him a remainder of, $4,564.62. Each year thereafter the defendant was charged with a remainder, and with the interest thereon until March 1, 1896, when there was due from him, as appears from the bill of particulars, the sum of $2,908.80, which is sought to be recovered in this action. He was also charged, among other items, with the following:
“January 22, 1892, to check favor of Falken- the sum in question had been carried into the stein, $143.30;" and "March 23, 1893, to current account; that they expected to show check favor Levi Strauss & Co., $154.22." by Decker's books, which they would offer in At the trial his counsel admitted the correct. evidence, that he had given Gasquet credit ness of said account, except the items there- for interest on that sum; and that these of herein before enumerated, which they con- matters, considered in connection with othtend could not be established by a book ac- ers, would show that there had been a concount. The defendant, having been called as summated negotiation between the parties in plaintiff's witness, identified his own ledger, respect thereto; but the court rejected the which, being introduced in evidence, shows evidence offered, and allowed the plaintiff an that his account with Gasquet purports to exception. It will be observed that the sum commence December 12, 1893, from which of the drafts specified in the recipts corre time the items thereof coincide with the lat- sponds with the charge made on the pass ter's account, except that Decker does not book and in the ledger, and the dates also charge himself with the principal, but only coincide. An inspection of the pass book with the interest thereon. Fred Frantz, a shows that of the four debits the first was apresident of Crescent City, Cal., one of the parently made therein October 6, 1888, and executors in that state of the last will of the other three on the 1st day of January, Horace Gasquet, deceased, testified, as plain- 1890, 1891, and 1892. It is quite evident that tiff's witness, that he found in the latter's these entries are not original, for when the effects a pass book, which being identified by charges therein noted are compared with the the witness, the following entry therein was bill of particulars attached to the complaint offered in evidence, to wit:
it is found that many other items intervene,
thus showing that they were not made in Charles Decker Act. 10-6. 1,375 00
the usual course of the business, but are only 4,073 51
the 'summaries copied from Gasquet's ledger, Jan. 1st, '90. 14 months' interest.
relating to his account with the defendant. 5,829 90
The entry in the pass book, though made by Charged on act. on deductions on his bill... 1,026 40
a person deceased, was evidently not made at Balance due by Ch. Decker, Jan. 1, '90....... 4,893 50 or near the time of the transaction, nor was Paid in by Ch. D., Jan. 1, '91.....
it against the interest of the person making Bal, duo Jan. 1, '92...
it, and hence it was not admissible as pri4.893 50
mary evidence of the fact as stated. Jan. 1, '92. Bal. due by Ch. D....... 3,789 22
Hill's Conditions, 6% per annum.
Ann. Laws Or. $ 767. The deed, like the reSecurity, all the buildings which were deeded to
ceipt, was offered only to corroborate the enmy name
try in the pass book, in which case it is To explain this entry, plaintiff's counsel of- doubtful whether the strict formality refered in evidence the following memorandum: quired by the statute (Id. $ 761) should be ob. "Waldo, Josephine Co., Oregon, 10-6-1889. served, as when an instrument of that charReceived from 'H. Gasquet two drafts, No. acter is designed to prove title or to sub138 vs. Porter, Sleisinger & Co. for W. J. serve a higher purpose; but, however that Wimer, sum ($1,375.00) thirteen hundred & may be, the pass book which was the foundaseventy-five dollars; also No. 139 vs. Porter, tion for the introduction of the receipt, deed, Sleisinger & Co. for G. W. Wimer, sum ($4,- and ledger in evidence having failed, the lat073.51) four thousand and seventy-three dol- ter must also fall with it, unless the evidence lars and 61/100,--in payment of goods and proposed to be offered by plaintiff's counsel of buildings in town of Waldo. Rece'd Oct. 6th, what they expected to prove connected the 1888. Geo. W. Wimer.” To supplement the pass book, receipt, deed, and ledger with the entry in the pass book, plaintiff offered in transaction, so as to charge the defendant evidence a deed purporting to have been exe- with the sums stated as the foundation of the cuted October 9, 1888, by Geo. W. and W. J. account. The answer denies, upon information Wimer and their wives to Horace Gasquet, and belief, that the sum of $5,448.51 was inin consideration of $30,000, and conveying tended to be charged for merchandise and certa in lots, stores, dwellings, barns, and oth- buildings received from Gasquet. No testier buildings; and they also offered Gasquet's mony appears in the bill of exceptions tending ledger, containing the charge against the de to show that either of the lots or buildings so fendant of $5,448.51. The defendant's coun- purchased by Gasquet was conveyed to the sel having objected to the introduction of the defendant, or that any agreement was ever deed, on the ground that neither of the sub- entered into between them whereby the latscribing witnesses thereto had been called, or ter was to purchase or pay for any of the their handwriting, or that of the grantors, property described in Wimer's deed. “The proved, so as to establish the execution there- other matters," alluded to by plaintiff's counof, and to the ledger and other memorandum sel in their statement of what they expected and receipt, on the ground that they were in- to prove, and which were to be considered in competent, irrelevant, immaterial, plaintiff's connection with the pass book, receipt, deed, counsel stated to the court, in effect, tha. iind ledger, are, in our opinion, not sufficientthe pass book was offered to explain the orig- ly definite to render the offer available, and inal transaction, and the ledger to show that hence no error was committed in rejecting