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About Daily capital journal. (Salem, Or.) 1903-1919 | View Entire Issue (Dec. 14, 1911)
PAILT CAPITAL JOURNAL, 8ALEM, ORSGOiT. THVRSDAT, DECEMBER 14, 1911. Children Cm - PI. X.I. vwwvwwWmvv WW, ' cner s 5 7 - uumfltha ,!.. x Z TV , and has been miT" . Bona! nDervilWYt..'Ef .ms Per- in use lor 7 - --Mpeiie, ,satalt jj; What is CASTORIA itorta Is a harmlegg rabstltntA n.. and allays Feverishness Sw de8troyg Worms has been In constat me foCSlVi ears Flatulency, Wind CoHc? aU TeetWnor0VCon,pation Diarrhoea. It reenlatl. nff Troubles and GENUINE CASTORIA ALWAYS Bears the Signature of The Kind You Dave Always Bought In Use For Over 30 Years TMtetHTuiieeMwiiT.TTiiui.rtTcT. New yoik erry. W3 s A ure to please the lovers of a wholesome beverage. Iways an invigorating, pure and delightful drink, Lends strength to the weak and wearied physique, Effects a soothing cure for the nervous ills of life. akes life more pleasant and cheers the heavy heart. B E E R rings good fellowship to all who partake in moderation. nlivens the spirit of th? down cast and disheartened. ndows existence with hopes and aspirations estores man to fulness ot strength and activiiy. MM I Pianos and Organs at Your Own Price. We also handle the celebrated EDISON PHONOGRAPH with full list of Records. We sell on easy terms and give , : . you the worth of your money. Old Pianos and Organs taken in exchange. Call and see us before you buy. jj CHERRINGTON & PETERS I 247 N. Commercial Street. Salem, Oregon Resident Piano Tuner, best in the State. XMAS I CAKES NfJ .5 W5Sar -U FAS' CI CAKE For Christmas from the Capital bak .r ia Rnrfl to be the center of attrac. tlon, not only because It looks good, but because It will taste as good as it looks. And so it is with all our pies, pastry and Christmas goodies oiioini.R and wholesome. Send Id your Christmas orders early to Insure fulfilment CAPITAL BAKERY OREGON. SUPREME COURT. DECISIONS Fill Text PibllaW bj Ceirteiy f . A. Tamer, Importer e( tfc Sapremr feart Inked Sttes National Bank of YalVsald. "All right." and he so marked t. Irst Trust and Satin js Bank, the checks. To the question. "It was JIalhenr County. ;at ihat time that Mr. Tschirgl told Decided. December 5, 1911. you to sign bis name on that checks Lnited States National Bank nf Mr Dnmio. n,nu t ju.'i ... me. uregon, a corporation, respon-' that, I told him what I would do and "CUL- Trust and Savings he said, 'all right ol erogan. Oregon, a corpora- amtnaUon. ""u. appeiiant Appeal from the cir- knew .uii court, ror Malheur county. The Hon. Dalton Biggs, judge. Armed and submitted at Pendleton, Nor. S.I J. W. McCulloch. (H. C. East man, McCulloch. Sollsa & Duncan on I brief) for respondent O. W. hvm. I (Hayes & Crandall, on brief) for at- pellant. Bean, J. Reversed and reminded. This Is an appeal by defendant from a Judgment upon the verdict of a jury, for 1280.47. This action la based upon two 'in land bills of exchange .for $120.47 and 160 respectively, upon which the plaintiff charge" defendant as an acceptor; the first with the alleged acceptance, being In the following form : "Brogan, Or., Nov. 22, 1910. No. First Trust & Savings Bank "Pay to the order of U. S. National Bank. ($120.47). One Hundred and Twenty 47-100 Dollars. "Morrison & Son. "O. K. by Tschirgl, Cashier. "11-22-10." The second bill Is in the same form except as to amount and name of payee. The complaint alleges the corpor ate existence of the plaintiff and de. ienaant; the execuMon ot the bills and the delivery thereof to plaintiff; the presentment of the bills to de fendant and Its due acceptance of the same In writing, upon the face there of, as follows: "O. K. Tschirgl, cash ier." At said time E. S. Tschirgl was cashier of the First Trust and Savings Bank, of Brogan, Oregon. Plaintiff, relying upon said bills and their acceptance by defendant, then and there paid to the drawer, Morri son & Son, the amount of the bills. November 29, 1910, plaintiff present ed the bills to defendant for payment which was refused. Two causes of action are separately stated In Bub stance as above. As to the alleged acceptance as it appears upon the face ot the bills in evidence, It Is no ticed that the word "by" Is omitted In the complaint. Defendant by Its answer denies the acceptance of the bills, or that they were presented for acceptance, and admits that de'endant refused to pay the same, and avers that Morri son & Son, at the time had no funds deposited with defendant with which to pay them. The reply puts In Issue the new matter of the answer, and avers that at the time of the transaction, de fendant held certain assignments of accounts, and expected to get re turns from certain consignments if alfalfa seed belonging to Morrison & Son. Bean, J. It appears from the evi dence which is all contained In the record, that Mr. J. P. Dunaway, at the time the transaction occurred, was the vice president and acting cashier of the plaintiff bank, at Vale, Oregon; and Mr. E. L. Tschirgl was the cashier of the defendant bank at Brogan, Oregon. the date men tioned on the bills, W. J. Morrison of the firm of Morrison & Son, gave the plaintiff the two bills In payment ot a note, and for $160 In cash. Mr. J. P. Dunawv testified that he called Mr. Tschirgl up over the tele phone, a few minutes after he had taken the bills or checks of Morri son & Son, and told him that Mr. Morrison had stated that he had ar ranged with Mr. Tschirgl to take case of his checks, and he wanted to know If he would do so if the checks were presented. Mr. Tschirgl an swered "that they would not", that Mr. Morrison was looking for a re mittance from Weiser, and if the same were received, he would take care of the checks, but unless the money came he could not accept them. After Mr. Dunaway phoned to the Commission Co. in regard to the re mittance, and reported to Mr. Tschir gl that he was Informed that the re mittance had 1)mh mailed; and after Mr. Morrison talked over the phone to Mr. Tschirgl, Mr. Dunaway said to the latter, "I'll mark the checks O. K. by you and send them to Boise " On cross ex- to the question, "You as a banker, after they (the checks) were certified, that the bank would be holden?" Mr. Dunaway an swered, "Yes, air, then I knew It was customary, If the cashier said it would be paid. It would be paid." The other evidence on the part ot plaintiff tended to corroborate Mr. Dunaway's testimony, but there was no other proof of any authority given to the latter to accpt the checks for the Bank of Brogan. At the close of plaintiff's case, de fendant's counsel woved the court for a nonsuit which was dented. We will, however, pass this and consider the whole record uder Sec. S, Art VII of the constitution, which among other things, provides that "Until otherwise provided by law, upon ap peal of any case to the supreme court either party may have attached to the bill of exceptions the whole testi mony, the instructions of the court to the jury, and any other matter ma terial to the decision of the appeal. If the supreme court shall be of opinion, after consideration ot the all matters thus submitted, that the judgment of the court appealed from was such as should have been ren dered In the case, such Judgment shall be affirmed, notwltstandlng any error committed during the trial; or If, in any respect, the judgment ap. pealed from should be changed, and the supreme court shall be ot opln Ion that It can determine whatjudg ment should have been entered In the court below, It shall direct such judgment to be entered in the same manner -and with like effect as de. crees are now entered In equity cases on appeal to the supreme court" The evidence on behalf of defendant tended to show that E. U Tschirgl, as cashier of the Brogan bank, Informed Dunaway that Morrison & Son had no funds In the Bank of Brogan; that their account was overdrawn, and the firm was at that time owing the bank on some other paper; that his bank therefore could not pay the checks unless the funds were there; but that they would take care of the checks If a certain remittance In full, came from Weiser; that he did not empower Mr. Dunaway to accept the checks for defendant; that the checks were not paid for want of funds on deposit by Morrison ft Son. Numerous errors are assigned among them the Introduction of the checks and the testimony relating to the making of the memorandum "O. K. by Tschirgl, cashier," and the in. structions of the court submitting the same to the Jury, to all of which exceptions were duly reserved by defendant's counsel. Giving to the notation, "O. K. by Tschlr gl, cashier," on the face ot the checks, all the meaning that may be claimed on account thereof, we do not think that this memorandum pur ports to be signed by the Bunk o Brogan or by Tschirgl, Its cashier. At (he most it appears to be a nota tlon made by Mr. Dunaway, cashier of the Bank of Vale, Indicating that Tschirgl, cashier of the Bank of Bro gan, had approved the checks verbal !y over the telephone. ' Tschirgl, as such cashier, had no implied author ity to authorize Mr. Dunaway to ac cept the checks for the Bank of Bro gan, and there Is no evidence In the record that the defendant bank, or any officer thereof, ever empowered Tschirgl to delegate such authority to Mr. Dunaway. Tschirgl, cashier of the Bank of Brogan, was its agent, and the general rule Is, that an agent In whom trust or confidence Is re posed, or who Is required to exercise judgment may not Intrust the per formance ot lils duties to another; 31 Cyc. 1425; Dorcheer and Milton Bank v. New Knghind Bank, 1 Cush. 177; Emerson v. Providence Hat Man ufacturing company, 12 Mass. 209. Mr. Dunaway at the time of the al leged acceptance of the checks, was the vice president and acting cashier of the Bank of Vale. One cannot be a party, and In the same transaction, I an agent of the opposite party, except with the full knowledge and consent the liability ot the defendant, Inde pendent of the acceptance of the checks. There was much evidence Introduced as to the condition of Morrison te Son's account st the Bank of Brogan; and the opportunity of the defendant bank to obtain funds from the sale of seed and hay whereby It would be recompensed for the payment of Morrison & Son's checks, which were presented tor payment November 29, 1910; and as to the arrangement claimed to have been made by Morrison A Son with the Bank of Brogan to honor the checks. At the close ot the evidence, counsel for defendant requested the court to Instruct the Jury to' return a' verdict In favor of defendant Section 6018, L O. L., provides that "A check Is a bill of exchange drawn on a bank payable on demand. Except as herein otherwise provided, the provisions of this act applicable to a bill of exchange payable on de mand apply to a cbeck." The legislative enaetmcnt now In force In this state, provides that a check or bill does not operate as an assignment ot any part ot the funds to the credit of the drawer with the bank, and the bank Is not liable to the holder unless and un,tll It accepts or certifies to the check; Sec. 6022, L. O. L. And Sec. 6960. I O. L, makes a like provision In regard to bill of exchange. This renders the testimony referred to immaterial. In the absence of an acceptance or cer tification of the checks Involved, the defendant bank was not liable. This Is now the law in those states that have adopted the negotiable Instru ments law; (Selover on Neg. Inst I.aw, Sec. 93) and n our opinion Is decisive of this feature of the cdse. However, the complaint alleges the acceptance ot the checks by defen dant as the basts of this action, and the plaintiff must proceed upon the' ory until the end, and recover. If at all, upon this asserted right ot re covery; Mescall v. Tully, 91 Ind. S The Toledo, St. Louts & Kansas City Ry. Co. v. Levy, 127 Ind. 16?: Whit- ten v. Bryant, Or. (Decided Nov, 21 1911.) After a careful consideration of nil the matters submitted In this case we are of the opinion that there wns no evidence produced to sustain the allegations of the complaint or to he submitted to the jury, and that tho circuit court erred in not Instructing the Jury to return a verdict for de fendant. Therefore the judgment ot the low er court Is reversed, and the cause will be remanded vlth directions to enter a Judgment 'of the same force as upon a verdict, In favor ot defen dant. In accordance with this oplnk n 4. ,M.nHH RED CROSS STAMPS FOR SALE HEIiE : for clearance," and Mr. Aschlrgi J D CREAM CR MAGICAL BEAI'TIFIEK of such principal. It was Incompati ble for the cashier of the plaintiff to "' !act as agent of the defendant In ac- Skin ot Beauty is a Joy Forever i cettin the checks in question; Mech- 1 -m on Agency, Sees. 66, 68. Neither R. T. FELIX GOURACD'S ORIENTAL lB thre a"y TlT" r!?"1 or adopted as Its own, the art of Mr. Rmri Tw. Pimpm Dunaway In making the endorsement Hun. nd m i Vi on the checks. 0'-r negotiable in tra fery oitmva ,n bemtr. tniii-. gtruments law requires that the nc- dtctftn. It i ... kmcrfiiiM centance of a bill mum be In writ iKkimiic'iif and signed by the drawee; L. O. tatellttwnrtt Li. ec. ota. i uere Deing no com petent evidence tending to show that the defendant bank signed an ac ceptance of the checks, we think It was error for the trial court to ad mit the memorandum on the checki In evidence. We come now to the question of us m. Ommnmd't Cr; U prcpwlf R'Vl. Accpc ba ewiDtir hit of nmuar nam. Pr. L. A. Sirr, Mid to 11? of U, bant t-n putemi. " A, Ji U0ui will aa UM I rtoMB4 tot kut wmfai ot tkin Drew toll. ' If 3T mu --- r OTSwiiii tta Citi Suim, C-4 m4 lorepfc fMT.HO? EH, tnVtndiim li litM Notice ef Sale of Personal Property, Notice Is hereby " given that on Monday, December 18th, 1911, at the hour of 10 o clock a. m., on said date, the store premises In the building ad joining the Peoples Bank, on Main street, city of 8llverton, county of Marlon and state of Oregon, the un dersigned, being duly authorized thereunto, will sell at public auction, to the highest bidder for cash In hand all the goods and chattels contained In said premises and covered by the mortgage hereinafter described; the same consisting of "One front bar, one back bar, one cash Register No, 183106, one safe, enumerated slot machines, one billiard and one pool table, four tables, 20 chairs, one desk and all glass and wood partitions, glassware and other chattols, grip machine No. 265, striking machine No 6430, strength machine No. 6109, draw poker machine No. TO 30, nickel machine No. 276, nlcUM ma chine No. 1210, quarter machine No. 1001." Said sale Is to he made for the foreclosure, and pursuant to the pro visions of a certain chattel mortgnge executed by Ambrose Brooks to Mrs. Louise Welnhard, Mrs. Anna Wennin ger, Paul Wesslnger, and Honry Wag ner, executrixes and executors of the estate of Henry Welnhard, deceased, dated the 2"ih day of September, 1907, and recorded at page 516 In book 11, of the mortgage records of said Marion county, Oregon, to secure cure the payment of a certain proin mlssory In said instrument described for the sum of $1700 In gold coin of the 1,'nlted Stutes of America, paya ble on demand, with interest item date six per cent per annum, on hlch note $675 has been paid account principal, leaving a balance of $1025 and Interest from date ot said note; default having been made In the pay ment of the said note, though duly demanded. Dated and first published the 11th day of December, 1911. ANTON KIRSCHNEtt. w- r-FectahrdlueUohrdI tao mm 12-9-7t-rtly Neckwear Alvay c Acceo t i Jkiirmixir ..Kiflisn urtirVi ar t -is.i t ifcfi GOOD PICTURES Just received everything in the Artist's Line. Also Mouldings for Picture Framing, and some beau tiful ready-made pictures W. J. PORTER 3 COIKT 8TRKET. For Christmas We've selected only the most popular fancies in side pleats, jabots, cas cades, lace stocks, stock collars in lace, lawn em broidered effects, each put up in a dainty Christ mas box, 1 2 -ss Priced from 65c to 04.50 Xmas Suggestion s ! i Furs Sweaters Bed Spreads TableCloth Napkins Guest Towels Umbrelas Fans Muslin Underwear Waists Kimonas Hosiery Gloves Jabots Side Pleats Scarfs Barrettes Back Combs Toilet Sets Manicure Sets Jewelry Hand Bags Mesh Bags Beaded Bags December Clearance of Suits and Coats Regular pr.cies $8,50 to $10,00, Special $ 5.00 Regular prices $12,50 to $15.00. Special $ 7.50 Regular prices $17.50 to $20,00, Special $10.00 Goods Delivered to All Parte of the City U. G. Shipley Company Quality ropalar 0D 145-147 North Liberty Street, s MEKClUJiDISE Between State and Coart T1UCES It iAAliiiAiiiiiLiti f TTTttTTTTTTTTfTTT When at Portland Go to the BOWERS ii u a : ; a w w I s ti ft ' n t' j n k R k. U M I v. v; i vh m Rates $1,00 up, Break fast and lunch 50c. Din ner $1.00. ' Also a la Carte service In grill. One block from Oregon Elec tric on 11th and Wash-, ington streets.. . Salem . people cordially Invited to make our house their, headquarters. F. P. WILLIAMS, formerly with Marion ;? E' 11 M II N M II !l Marvel t i r if Ask Your Grocer for it warn .M. New Line to Tillamook I VIA THE (0G0EN & SHASTA ROUTf 5 AND Pacific)4Railway & Navigation Co. Trains will run dally, except Sunday, on tli following schedule: I.v. Portland 7:20 A. M. Ly. llllluboro 8: DO A. M Ar. Beach Points ...1:20 P. M. Ar. Day City 2:04 P. M. Ar. Tlllumoolc 2:25 P. M. Lv. Tillamook 7:55 A. M Lv. I!ay City 8.15 A. M. I.v. lipuch Polnti.. . .9:00 A. M. Ar. HlllHboro 1:25 P. M. Ar. Portland 4:10 P. M. Through ticket on nale at city ticket odlce, Third and Washing ton RtrevU. or Fouth and Yamhill, to all point on the P. . & N. Further particular from the city tcket &Knt or agent, Fourth and Vamlilll atreeta. JOHN M. SCOTT, General Passenger Agent, Portland, Ore. Phone 154 439 Court Street -