Dozier v. Hillman

THE COURT.

This is an action brought by Thomas B. Dozier, since deceased, to recover from C. D. Hillman the sum of $3,227, with interest, according to the terms of a promissory note purporting to have been executed by Hill-man on November 8, 1921.

The note was made payable to Laymance Real Estate Company, a corporation, and was by it transferred before maturity to Dozier.

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The defendant in his answer to the complaint admitted the execution of the note, but alleged payment. In a supplemental answer he denied the execution of the note, alleging the same to be a forgery.

The trial court found in Dozier’s favor, and entered judgment accordingly, with attorneys’ fees in the sum of $1,000.

The defendant, who has appealed, contends that the finding that he executed the note is not supported by the evidence, and that the allowance of the above amount as an attorney’s fee was an abuse of discretion.

The testimony shows that the document in question was indorsed for the corporation by William J. Laymance, its secretary, and delivered to Dozier for a valuable consideration shortly after its date. It appears that the defendant over a period of years had considerable business both with the company and its secretary. On April 4, 1923, Dozier sent a letter to the defendant, stating that the note (describing it) had been transferred to him and requesting payment. The defendant made no reply to this letter, but admits its receipt. Suit was commenced on the note and an amended complaint filed in the action on January 25, 1927. Thereafter two other letters passed between the parties; one dated August 2, 1927, was sent by the defendant, stating in effect that the note had been fully paid to William J. Laymance and making no claim that the same was a forgery. In reply Dozier on August 4, 1927, denied the statement that the note had been paid. Defendant’s answer alleging payment, was filed on August 31, 1927; his supplemental answer, denying the execution of the note, was filed on October 13, 1927, which was after the trial of the caiise had commenced. The trial opened on September 14, 1927, and on that day the defendant, who was called as a witness for the plaintiff, testified in substance that he executed the note, but that he paid the same to William J. Laymance within three days after its date, and that payment was made in cash and by the conveyance of certain real property in Oregon. On this occasion it was announced by plaintiff’s counsel that Laymance had died, a fact of which defendant, according to his testimony, had before been ignorant. The defendant after the filing of his supplemental answer testified that the only note executed by him to the corporation was dated June 25, 1920, and was for $2,262, payable six