Clarkson v. Hoyt

BELCHER, C. This is an action to recover the amount due on a promissory note for $1,969, given by defendant to plaintiff, and dated “Lakeview, Or., May 25, 1888.”

The material parts of the answer are as follows: It is alleged that in 1880 defendant was a resident in Siskiyou county, California, and was the owner of two fully equipped stock ranches in Lake county, Oregon, and also of a large number of cattle, horses, mares and mules, and was then engaged in the business of stock-raising in that county and state; that in September, 1880, he employed the plaintiff, at an agreed salary of $40 per month, to take the sole care, management and control of all said real and personal property in Oregon, as the agent of defendant, and in his name and for his benefit to conduct the business of raising, caring for, and managing the stock of cattle, horses, and mules aforesaid, and to preserve and keep in good repair the said ranches, machinery, and all appliances used in said business, to purchase all necessary supplies and hire all necessary labor that should be required in conducting the said business, and to market, from time to time, as the same should become salable, said cattle, horses, and mules; that, pursuant to such employment, the plaintiff, on September 15, 1880, received into his possession, and took the entire and sole control, care and management of said real and personal property, and thereafter continued to have and exercise such control, care and management until December 15, 1888, when he resigned his position; that from time to time [549]during his employment plaintiff informed defendant that he did not wish to draw all of his salary, but preferred to leave the same in defendant’s hands, drawing interest at the rate of seven per cent per annum, and that a portion of his salary did remain in defendant’s hands until the 25th of May, 1888; that on said last-mentioned day, and while defendant was temporarily on a visit to plaintiff at Lakeview, Oregon, plaintiff demanded of defendant a settlement of all of his salary then unpaid, and defendant, then believing that he had faithfully discharged his duties as agent, and upon his representation that the full amount of $1,969 was due him on account of his salary and interest thereon to that date, executed and delivered to him the promissory note sued" upon; “that said promissory note was so executed and delivered without any accounting or settlement between plaintiff and defendant as to the general business of plaintiff’s said agency, and under the said representations by plaintiff to defendant that his said business was all in good condition, and under the belief by defendant that all of plaintiff’s said representations were true”; that early in the summer of 1888, and after the execution of the said note, defendant commenced to investigate the true condition of his said property and business, and upon such investigation he for the first time learned that all of plaintiff’s statements and representations were false, and “that the plaintiff had fraudulently and in violation of his said trust spent large sums of money belonging to the defendant for matters and things personal to himself, and entirely foreign to the necessary management and care of defendant’s said property and business, and that he had from time to time sold and-otherwise disposed of a large number of defendant’s said cattle, horses and mules, and rendered no account whatever thereof to the defendant, nor paid to defendant any of the profits of said sales”; that at the time of the execution of the said note the defendant was not indebted to the plaintiff in the sum named therein, or in any other sum or amount whatever, for salary due plaintiff, or the interest thereon, or otherwise, but that, on the contrary, the plaintiff was then, and now is, indebted to the defendant in the sum of fully $6,000; and that the said note was made, executed, and delivered as aforesaid without any consideration whatever. And the prayer was that plaintiff take nothing by his action. The