Somers v. Hanson

153 P. 43, 78 Or. 429, 1915 Ore. LEXIS 45

• Court: Oregon Supreme Court
• Decided: November 23, 1915
• Status: Published

Opinions

Opinion by

Mr. Chief Justice Moore.

1, 2. The question to be considered is whether or not the complaint shows that the defendant incurred a personal liability by signing the promissory note sued upon. When a copy of any writing, designated as an exhibit, or otherwise sufficiently identified in a pleading, is attached thereto and thus becomes a part thereof, the effect of the instrument so displayed is the same as though it were incorporated in the body of the pleading: Caspary v. Portland, 19 Or. 496 (24 Pac. 1036, 20 Am. St. Rep. 842); Riley v. Pearson, 21 Or. 15 (26 Pac. 849); McLeod v. Lloyd, 43 Or. 260 (71 Pac. 795, 74 Pac. 491). The note must therefore be read in connection with and as a part of the complaint in order to determine the averments thereof. Thus construing the language of the initiatory pleading, it will be read as alleging that “the defendant and one Thomas Hanson made and delivered’to plaintiff and one A, S. Allen a promissory note of which the following is a copy,” setting it forth.

In Woods v. Town of Prineville, 19 Or. 108, 110 (23 Pac. 880, 881), Mr. Justice Strahan says:

“There are two modes at common law of bringing any writing upon the record by pleading; one was to set it out in haec verba, and the other was to plead it according to its legal effect; and this rule remains unchanged by any provision of our Code.”

When the contract sued upon is set out m haec verba, it will be so construed that its legal effect will be recognized. If the writing is thus declared upon, it is superfluous to state what its legal effect is: 4 Ency. Pl. & Pr. 918. If there be any discrepancy between the averments of a pleading and the terms of a writing properly identified or attached to a statement of facts constituting a cause of action or a defense, the language of the exhibit will control in determining its legal effect: 31 Cyc. 563; Patrick v. Colorado Smelting Co., 20 Colo. 268 (38 Pac. 236); Lewy v. Wilkinson, 135 La. 105 (64 South. 1003). The promissory note having, in effect, been set forth in the complaint in the exact language employed in the negotiable instrument, the allegation of the legal effect of the writing as stated in the pleading must be disregarded as superfluous and variant.

3. In the notes to the case of Gavazza v. Plummer, 42 L. R. A. (N. S.) 1, 3, it is observed:

‘ ‘A signing in which the name of the principal is followed by the name of the agent separated by the word ‘by’ or ‘per’ is uniformly regarded as a proper method of executing the agency so as to impose no personal liability upon the agent.”

It is not alleged in the complaint herein that “Hanson Bros.” were partners and the defendant was a member of that firm, so as to explain the meaning of the phrase “by Erastus Hanson,” when appended to the promissory note; nor is it averred that by thus subscribing his name he intended personally to be obligated to pay the sum to become due on the instrument, so as to render testimony relating thereto admissible. In the absence of these necessary averments, it will be implied that the defendant, having signed the name of a disclosed principal, did not intend to become personally liable. The complaint did not state facts sufficient to constitute a cause of action, and no error was committed as alleged.

It follows that the judgment should be affirmed, and it is so ordered.

Aeeirmed.

Mr. Justice Harris took no part in the consideration of this case.