First National Bank v. Jamieson

Evidence — Written Instruments — Duplicates—“Original Instrument.” Where a declaration of trust is made in duplicate by the same impression of the typewriter, and signed at the same time, each party taking one, either is admissible as an original.

From Coos: John S. Coke, Judge; Statement by Mr. Justice McBride. The First National Bank of Bandon, brought this action against C. E. Jamieson alone to recover upon a promissory note, executed in its favor by him and one Dunklee. Defendant answered, admitting the execution of the note, but alleged that he signed merely as an accommodation maker, and that this was known to plaintiff; that thereafter the note was fully paid and satisfied by the sale and transfer to plaintiff by Mrs. F. Dunklee of certain chattels of the agreed value of $450, which were accepted in full satisfaction of the note, said transfer being made to C. R. Wade, attorney and agent for the bank. Plaintiff replied, denying the hew matter alleged in the answer, and alleging that the transfer by Mrs. Dun-klee to Wade was in trust to sell the property and apply the proceeds, so far as they would go, to the payment of-the note, and not otherwise, and alleged that at the time Mrs. Dunklee made the transfer she did not own the property she assumed to sell, but had previously sold it to one J. P. Tupper, who recovered the same by an action at law, and that nothing had been realized from the security. The execution of the note was admitted, and defendant introduced a bill of sale from Fenetta Dunklee to C. R. Wade of the goods mentioned in the answer. Said bill of sale was upon its face an unconditional transfer to Wade as trustee for the bank. The defendant then offered oral testimony tending to show that the intent of such bill of sale was to liquidate the note. Wade testified, on rebuttal, that at the time of the transaction a written memorandum was made by him showing the purpose of the bill of sale; that he made two copies on the typewriter at the same time, each signed by himself, each written by the same impression of the typewriter, and each absolutely identical; that he kept one of these duplicates for his own use, and gave the other to Mrs. Dunklee, marking his, “office copy.” To the introduction of this instrument the defendant objected, and the objection was overruled. The admission of this testimony is assigned as error. Submitted on briefs without argument under the proviso of Rule 18 of the Supreme Court. 56 Or. 622 (117 Pac. XI).