McCargar & McKay v. Federal Securities Co.

MeBRIDE, J. We have gone to some length in giving the findings in this case, owing to the fact that there is no settled, certified, or allowed bill of exceptions in the transcript. There is a copy of the oral testimony certified to by the reporter and a further undated certificate by the judge to the effect that it is a “full, true and correct transcript of all the testimony given and introduced at the trial.” While the court has been very indulgent in the matter of recognizing as valid very inartificial statements as bills of exceptions, there is nothing here that indicates that the document under consideration was intended either by judge or counsel to serve any purpose beyond that stated in the certificate, namely, a transcript of the testimony. Had it been attached to a bill of exceptions or been certified as being in itself a bill of exceptions, we could consider it, but coming in its present form it must be disregarded, and the case must be tried on the sufficiency of the findings to cover the necessary issues raised by the pleadings. In fact, such seems to be the view of counsel for appellant, whose principal argument is to the effect that plaintiff is entitled to a judgment upon the findings, and, indeed, in our view of the case, the evidence, even if we were disposed to consider it, would add nothing to the strength of plaintiff’s case. Prom those findings, we gather, that, when plaintiff advanced the money to pay the premiums, it took from Raymond cértain negotiable promissory notes payable to plaintiff and executed by the L. G. Raymond Lumber company, a corporation, of which L. G. Raymond was the principal stockholder, president and manager, but wholly distinct from L. G. Raymond Warehouse “B”, and which first named corporation was not officially concerned with the dealings between the L. G. [355] Raymond Warelionse “B” corporation and the defendant, and which is not a party to this action; that before the alleged promise of defendant to pay said premiums, these notes, which were given plaintiff for the payment of these premiums in controversy, were sold and transferred to the Investors Company of Oregon, another corporation, and that the Investors Company of Oregon was the owner and holder of said notes at the commencement of the present action and up to and including the final judgment in this case. It is contended that by the sale of the notes given by the lumber company to plaintiff the McCargar and MacKay corporation put it beyond its power to waive the notes and sue upon the original alleged agreement, and this would probably have been true, had such a defense been pleaded by way of abatement or otherwise,.but no such defense has been pleaded. The defendant stands squarely upon the defense that it never made the agreement. The defense should have been made by a special plea setting up the facts: Overholt v. Dietz, 43 Or. 194 (72 P. 695). Findings of fact VIII, IX, X and XI recited in our statement taken together are to the effect that the receipt recited in finding VTII contained all the terms upon which the policies were to be held, unless findings XII, XIII and XIV modify them so as to render them unintelligible or contradictory. We are of the opinion that the letter set forth in finding XII was broad enough to authorize Koester to agree for his principal to accept the policies as collateral and to bind his principal as between Raymond and the principal to pay the premiums upon the policies. A says to B, if you will assign policies upon your life to me as collateral security for a debt you [356] owe me, or as security for the performance of a contract with me, I will take them and keep the premiums paid up. Here is a contract with a consideration, but for whose benefit is it made? So far as the findings indicate, it was made, not for the benefit of McCargar and MaeKay, or for the benefit of the insurance company. The fact then must have been as the court found it to be, that Koester agreed with Raymond that defendant would pay the debt due from the L. G-. Raymond corporation, which had executed the notes to McCargar and MaeKay, the amount of these notes representing the first premiums which McCargar and MaeKay had paid to the insurance company, and the receipt of the policies, in the absence of testimony, must be taken as expressing the terms upon which it was taken, but like any other receipt it is merely a matter of evidence and other conditions of the assignment may be established by parol. In this case we have a further finding XIY, which states that Koester made an oral agreement with L. Gr. Raymond, that the defendant would pay the plaintiff herein the premiums on the insurance policies mentioned in the complaint upon said policies being assigned to the defendant as collateral security, and pursuant to such oral agreement said policies were so assigned. This finding may be construed as concluding that the promise recited was the sole inducement that induced the assignment, and that there was a direct stipulation that the premiums were to be paid to plaintiff. It is contradictory to the finding that the promise was not made for the benefit of plaintiff, and which finding was no doubt made by the learned judge who presided at the trial upon the theory that the promise, being oral, was invalid as contravening the statute of frauds. [357] This court is now fairly committed to the opposite doctrine by the recent case of Sandgren v. Cain Lumber Co., 125 Or. 375 (264 P. 865) and, while previous decisions have not always been entirely uniform, this case settles the doctrine. The findings being in this condition and not having the advantage of a bill of exceptions, whereby we would be enabled to try the case out on the facts, we think it best to send it back for a new trial whereby defects in the pleadings and omissions in the findings may be remedied and cleared up, and it is so ordered. Rossman and Brown, JJ., not sitting.