Ex parte Kindt

52 P. 187, 32 Or. 474, 1898 Ore. LEXIS 56
CourtOregon Supreme Court
DecidedFebruary 28, 1898
StatusPublished
Cited by3 cases

This text of 52 P. 187 (Ex parte Kindt) is published on Counsel Stack Legal Research, covering Oregon Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ex parte Kindt, 52 P. 187, 32 Or. 474, 1898 Ore. LEXIS 56 (Or. 1898).

Opinion

Mr. Justice Bean

delivered the opinion.

This is a proceeding in the name of the state, upon the relation of the grievance committee of the State Bar Association, for the removal of Charles E. Kindt,, an attorney of this court, for unprofessional conduct. [475]*475In brief, the charge in the information is that the defendant, while the attorney for the executors of the estate of Miles Davies, deceased, presented to his clients a-false and fraudulent check and affidavit, for the purpose and with the design of inducing them to believe and as evidence that a certain note belonging to said estate, and executed by the defendant, had been paid. The facts are that in 1893 Miles Davies, the grandfather of the defendant, died in Washington County, leaving a will, wherein his sons Alfred and A. N. Davies are named as executors thereof. Among his assets was a promissory note on the defendant for the sum of $125 and interest. The testimony in behalf of the informants shows that some two or three months after the appointment of the executors the defendant, while acting as their attorney, claimed to them that the note against him had been paid to the testator by a check on a bank in Washington, D. C., and, being asked if he could produce the check as evidence of such payment, said he did not think he could, for the reason that the bank upon which it was drawn had failed or gone out of business, but he thought he could get an affidavit of its payment from the man who was cashier at the time. At a later date, while he and the two executors were in consultation in Judge Humphreys’ office at Hillsboro, about matters pertaining to the estate, the defendant produced what purported to be a check drawn by himself on the Lincoln Banking Company of Washington, D. C., of date August 15, 1892, for $150, in favor of Miles Davies, and having thereon what purported to be the endorsement of the payee; and also exhibited what [476]*476purported to be an affidavit of James H. Fair, Jr., subscribed and sworn to before O. V. Lee, notary public for the District of Columbia, to the effect that on the fifteenth’of August, 1892, and prior to that time, and up to and including the thirtieth day of December, 1892, the affiant was the cashier of the Lincoln Banking Company of Washington, D. C.; that he knew C. E. Kindt, who was a depositor in said bank, and had standing to his credit therein on August 15, 1892, the sum of $151.25; that on October 20, 1892, there was received at the bank, through the United States mail, a check dated at Hillsboro, Oregon, August 15, 1892, drawn on the bank by Kindt for the sum of $150 in favor of Miles Davies, and on the twenty-second of the month the bank duly remitted by mail to Mr. Davies the amount thereof in currency, and charged the same to Kindt’s account; that the banking company went out of business on January 1,1893, and that the check attached to the affidavit and made a part thereof “is the original check as received and paid by the bank.”

This affidavit and check, after having been examined by the executors, were returned to Kindt, who took them to Portland, but, the executors being suspicious as to their genuineness, one of them, a few days later, asked for and again obtained possession of the papers for further examination, and submitted them to Judge Humphreys at Hillsboro, who compared the endorsement on the check with the genuine signature of Miles Davies, and, at the request of the executors, wrote to James H. Fair, Jr., Washington, inquiring about the matter. In due time he received through the mail what purported to be a letter from [477]*477Fair, acknowledging the receipt of his letter of inquiry, and saying that the affidavit to which he referred therein contained all the facts in possession of the writer; that the check was received and paid by the bank in the ordinary course of business, and the reason the money was sent in currency must have been because “a request of that kind accompanied the check, as the invariable rule of the bank was never to remit in that manner unless requested to do so.” The letter goes on to say that “ It is not at all improbable that the letter (containing the check) ‘stuck’ in the hands of some mail clerk, as money in a letter is easily detected,” and “ that the bank was merged in another concern about a year ago, and the letter accompanying the check is no doubt destroyed,” and that “ if Mr. Davies did not receive the money it was not the fault of the bank, nor of Mr. Kindt, for whom we have a high regard.” The executors, being unwilling to accept the showing made as sufficient evidence that the note had been paid, caused copies of the affidavit and check to be made, which copies are in evidence, but the original papers were returned to Kindt, at his request, and are not before us.

• In addition to the affidavit and check, there are also in evidence three letters purporting to have been sent from Washington by Fair to the defendant. The first one is dated May 1, 1893, and purports to be an answer to a letter from Kindt relating to a check which he gave to Miles Davies, in which it is said that the banking company “ went out of business and was absorbed into another concern- incorporated by act of congress January 1 of this year,” since which [478]*478time the writer had not been connected with it, but he would see if he could get access to the old books and obtain the information desired. The next is dated June 25,1893, and purports to be an answer to a letter from Kindt asking for the original check, in which the writer says that he will make an effort to get it. The other one is dated July 15,1893, and purports to acknowledge the receipt of a letter from Kindt of the 8th inst., enclosing an affidavit for Fair to verify before some notary public in Washington, in which the writer says: “ I will draw one myself and have it acknowledged and sent to you with the original check, which I now have.” All the letters purporting to be from Fair were on letter paper having printed thereon “ Office of James H. Fair, jr., real estate and money broker, Washington, D. C.”

Now the evidence shows, and about this there is no dispute, that the affidavit, check and letters referred to were actually in existence at the time indicated, and that there was not during the year 1892, nor at any other time, such a concern in Washington as “ The Lincoln Banking Company,” nor were there any such persons there as “James H. Fair, jr.,” or “0. V. Lee,” but the letters purporting to have been written by Fair to Humphreys and Kindt, the affidavit purporting to hav§ been made by Fair and the check annexed thereto, together with the endorsement of Miles Davies thereon, were all and each of them false and fraudulent, and the notarial seal which made the impression attached to the affidavit purporting to be the seal of O. Y. Lee, notary public, District of Columbia, was manufactured by a sealmaker in Portland. This [479]*479much the defendant himself admits, but he claims that the scheme was concocted by his clerk, Hoopengarner, and the executors for the purpose of wronging and injuring him, and says he never presented or exhibited the affidavit and check to the executors or knew of their existence until he received them through the mail in the fall of 1893, nor did he claim at any time that the note in question had been paid.

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Bluebook (online)
52 P. 187, 32 Or. 474, 1898 Ore. LEXIS 56, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ex-parte-kindt-or-1898.