Moore v. Moore

1. There is but one ultimate issue in this ease. Did Walter H. Moore, at the time of his death, have any beneficial interest in the partnership wherein the plaintiff now seeks an accounting?

The transcript of the testimony is exceedingly voluminous, covering a wide range, discussing a series of transactions extending through a period of many years. A detailed analysis of this evidence would be impracticable and unprofitable. Briefly stated, it appears that the two brothers and their wives, starting together with an insignificant amount of property, by industry and thrift became quite *138prosperous. After making- their home at Moro for many years, they transferred their activities to the City of Portland, where they engaged in numerous enterprises, consisting principally of real estate transactions. During this time Walter H. Moore became president of the Oregon Bank & Trust Company, and in 1907, through mismanagement of its affairs, the bank became involved in financial difficulties, was unable to meet its obligations, and Thomas C. Devlin was appointed receiver, and thereafter began two suits against the officers of the bank to recover certain sums of money which it was alleged had been misappropriated by them. In these suits H. A. Moore was joined as a defendant, upon the theory that he was an officer of the bank. In these suits there were decrees for the plaintiff in large sums of money, which, upon appeal to this court were modified as to the amount of the recovery, and dismissed as to H. A. Moore, it being conclusively determined that he had no interest in or connection with the bank: Devlin v. Moore, 64 Or. 433 (130 Pac. 35); Id., 64 Or. 464 (130 Pac. 46).

Prom the time of the failure of the bank, Walter H. Moore as president, was severely criticised for his connection with the disaster, a fact which caused him great distress, and according to the testimony of H. A. Moore, America Moore and Laura H. Moore, who, with Walter H., constituted the partnership known as Moore Brothers, Walter H. proposed to the other members of the firm that, being desirous of making such restitution as lay in his power, he .wanted,them to convey to him such portion of the firm’s assets as would represent his. interest therein, so that he might in turn convey the same to Devlin for the benefit of the bank. They were reluctant to *139do this, contending that they were in no way responsible for the failure or the obligations arising therefrom.- However, they finally yielded to his importunities and made the necessary conveyances of their interest in properties which were accepted by Devlin at a valuation of $115,900.. In consideration of such action upon their part, Walter H. from time to time made conveyance to them of his interest in the remaining assets and at the time of his death had parted with all of his interest in the firm. ■ In addition to the positive testimony of the surviving members of the partnership, the record discloses that when execution had been issued upon certain judgments against Walter H. Moore, arising out of the hank failure, such executions were returned nulla bona, and supplementary proceedings were instituted against Walter H. Moore, wherein, upon being examined upon oath as to his having any property subject to execution, he testified that he did not have a dollar in money or property, and had no interest in any property then in the possession of any other person. He then narrated the circumstances of the conveyance by the defendants of the property received by Devlin, substantially as recited by the defendants, saying:

“I took the proposition up a day or two after hank closed, to turn in property to stand good for any deficit that might come from the bank paying Mhe depositors, hut they didn’t want to do that; didn’t feel that they had any right to do it, and didn’t believe that it was their place to do it; hut I stood by my convictions, and after probably a week they decided to do that, if I would agree to give up my interest in the other property.”

He further testified that the conveyances were made by them as agreed, and that subsequently, *140from time to time, he made conveyances to them of his interest in the remaining property, and had no further interest in the assets.

Plaintiff urges that the statements so made by Walter H. Moore are not competent evidence, and cannot be considered in this proceeding, basing his contention upon the assumption that the evidence is admissible only by virtue of Section 710, L. O. L., which reads thus:

. “The declaration, act, or omission of a deceased person, having sufficient knowledge of the subject, against his pecuniary interest, is also admissible as evidence to that extent against his successor in interest.”

Plaintiff’s theory is that at the time the decedent testified as above set out, such declarations were not against his interest, but, on the contrary, were made with the purpose of protecting himself and family from the consequences of what he considered unjust judgments. We might, perhaps, dispose of this proposition by remarking that the statements of the deceased themselves constitute refutatiotí of the theory that they were designed to serve the declarant’s financial interests, and, on the contrary, indicate a desire to disregard his pecuniary interest, in response to an exalted desire to clear his good name from suspicion, and to make restitution for an unintentional wrong. However, we are of opinion that the statements of Walter H. Moore are competent evidence, without relying upon the provisions of Section 710, L. O. L. The authorities recognize two classes of statements of decedents which may under certain circumstances become competent evidence in subsequent litigation. The distinction between these two groups may be best expressed by quotations *141from Jones on Evidence (2 ed.), in Section 323 of ■which we find this language:

“In several of the preceding sections the discussion has related to the admissibility of declarations or entries made in the regular course of business and as part of the res gestae. In another chapter we discussed the admissibility of declarations of parties and those identified in interest with parties, that is, admissions. We now come to the consideration of an entirely different class of declarations, which should not be confused with those already mentioned; namely, declarations made by strangers, that is, by persons not in privity with the parties to the suit; declarations which are ■ not necessarily made in the regular course of business, but which are received on the ground that they were against the interest of such stranger and irrespective of the fact ivhether any privity exists between the person who made them and the party against whom they are offered.”

Turning now to Section 242 of the same volume, under the subtitle, “Admissions of ancestor against heir,” we read this:

“The principle under discussion has often been applied in the admission of the declarations of ancestors as against their heirs. Stating the rule more broadly, it has been held that whenever the admissions of an ancestor would be admissible against him, if living, they are admissible against an heir claiming under him by descent, and are receivable in evidence against him in the same manner as they would have been receivable against the ancestor.”

The distinction thus clearly announced is also recognized in G-reenleaf on Evidence (16 ed.), Section 189, and 2 Wigmore on Evidence, Section 1081. It follows, therefore, that the admissions of Walter H. Moore are competent evidence, independent of *142the provisions of Section 710, L. O. . L. We have, therefore, the positive evidence of everyone concerned in the firm, that Walter H. Moore was not interested in the partnership at the time of his death. The other evidence in the case does not overcome the convincing power of this testimony.

We concur in the findings of the trial court and the decree is affirmed.

Affirmed. Rehearing Denied.