Proebstel v. Trout

Mr. Justice Burnett delivered the opinion of the court. 1. The plea of tender made by the defendant Trout can avail him nothing in this suit, for the reason that he does not state the amount of money which he tendered to Donaldson on he date he mentions. To make the plea of tender effectual, the amount tendered must be stated, because without this it is impossible for the court to reach the conclusions which the pleader draws that the full sum was tendered. The allegation of the answer that the money tendered was the full sum due, amounts only to a conclusion of law. 'The fact of the exact amount tendered must be stated in order for the court to draw the same conclusions that the pleader has reached in — 150 — his statement: Goss v. Bowen, 104 Ind. 207 (2 N. E. 704); Dickerson v. Hayes, 26 Minn. 100 (1 N. W. 834): Knight v. Abbott, 30 Vt. 577; Chase v. Welch, 45 Mich. 345 (7 N. W. 895). Moreover, the defendant Trout does not in his answer give the court sufficient data by which the balance due could be calculated even if his allegation in that respect was sufficient, for although he admits giving a note on the 8th day of December, maturing June 8th following, and that the note bears interest at the rate of ten per cent per annum, he does not state whether the note was to bear interest from date or from maturity. Hence, if we were permitted to compute the sum then due when the tender was made, as alleged, there is not sufficient material in the answer to enable us to reach a correct conclusion on the matter. As to the tender, we are satisfied that the same result must be reached upon the merits, for although on July 23, 1909, the defendant Trout offered in writing to pay S. J. Donaldson $1,063 without stating to what the payment was to be applied and demanding that the certificate of sock be delivered up to him, still the evidence shows that he was not then in position to have made good his offer of payment, even if it had been accepted. He says himself that he had not the money, and that he had only negotiated with a friend to supply him the money. Even this friend does not say that he had the money where it could be immediately furnished, but that he would have had to make further arrangements for it. 2. Hence, we think that, although the writing itself may have dispensed with the immediate offer of the money in specie, yet it must have been made in good faith, and that it would not dispense with the defendant’s actual ability and readiness to pay. the money. In short, the effect of the conduct of the defendant Trout on that subject, as disclosed in the evidence, was in reality a mere — 151 — pretense or skirmish for advantage. A strong presumption that the defendant Trout was not acting in good faith when he made the offer in writing is drawn from the fact that he has not brought the money into court so as to keep the tender good. Conceding, without deciding, that an issue is raised as to the ownership of the defendant Donaldson in 6,950 shares of the stock in question, we think his ownership is sustained by the weight of the testimony on the merits of that controversy. 3. We think the main question in this -case should be decided according to the maxim that equity regards the substance rather than the form. • “By force of this principle, equity goes behind the form of a transaction in order to give effect to the intention of the parties either to aid an act abortive at law because formally defective or to impose a liability as against an evasion by a formal concealment of its true character.” 16 Cyc. 134. This general principle is further illustrated by the following authorities: Texas v. Hardenberg, 10 Wall. 81 (19 L. Ed. 839); Craig v. Leslie, 3 Wheat. 578 (4 L. Ed. 460); Campbell v. Freeman, 99 Cal. 546 (34 Pac. 113); Dodd v. Wilson, 4 Del. Ch. 114, 408; Sandeford v. Lewis, 68 Ga. 484; Pomeroy v. Benton, 57 Mo. 551; Hardin v. Emmons, 24 Nev. 329 (53 Pac. 854); Stockton v. Central R. Co., 50 N. J. Eq. 73 (24 Atl. 964: 17 L. R. A. 97); Meier v. First Nat. Bank, 55 Ohio St. 460 (45 N. E. 907); Frink v. Cole, 10 Ill. 339; Bennett v. Minott, 28 Or. 339 (39 Pac. 997: 44 Pac. 288). With this rule in mind, let us examine the facts as disclosed by the testimony. 4. S. J. Donaldson became the owner of the note and its accompanying collateral by virtue of the indorsement of the payee and her then husband, G. C. Donaldson. Being thus in possession of the note, and it having matured and become past due, assuming, perhaps, that — 152 — he could foreclose the mortgage by its terms, he took the note and delivered it to the defendant Trout, who was at the time secretary of the corporation, and demanded that, in accordance with the letter of the collateral contract, he should transfer the 20,000 shares named in the certificate to the defendant Donaldson. Trout took the note, and said, in substance, he would attend to it soon, but, instead of transferring the stock, he made the offer in writing to which allusion has already been made, although he retained possession of the note. Trout contends that the. surrender of the note extinguished not only the note itself, but also the debt which it represented, and many authorities are cited on that subject. Throughout all of them, however, runs the element that it must be intended by the parties at the time that the debt should be extinguished. All the circumstances of this case show that no such intention can be derived from the conduct of either of the parties. Donaldson was evidently attempting to foreclose the pledge and realize upon the security, and not to discharge the debt until that end was accom-' is shown by his offer at a subsequent time on the same plished. That Trout did not so intend • the transaction day to pay the money, evidently upon that debt, although it is unspecified in his offer. We conclude that at least in equity the debt itself was not extinguished. 5. Being in possession of the pledged property, after default in payment of the debt for which the stock was pledged, S. J. Donaldson had a qualified property in the stock: Reinstein v. Roberts, 34 Or. 87 (55 Pac. 90: 75 Am. St. Rep. 564); Swank v. Elwert, 55 Or. 487 (105 Pac. 902). Being the owner of the debt itself and having this qualified property in the pledge, Donaldson could convey that to the plaintiff either as the absolute owner of the same or so as to give him authority to collect it for the benefit of Donaldson. We think the acts of the parties, — 153 — ”as detailed in the testimony, and their intent to be drawn therefrom, show that the property was regularly transferred to Proebstel for the purpose of enabling him to collect it for the benefit of the defendant Donaldson, and that for the purpose of this suit Proebstel stands in the same right that his grantor Donaldson stood. On the merits, Proebstel is shown to be acting in good faith for the reason that he had another cause of suit against said Trout in connection with stock in that corporation, and it was thought best to include the two in the same complaint in the first instance. From a legal standpoint, as well as from the substantial equities of the case, we think the defense of the defendant Trout is without merit, and the decree of the court below should be affirmed. Affirmed.