Bligh v. Lafler
178 P. 353
Or.
1919
Check Treatment

Lead Opinion

BURNETT, J.

1, 2. The court cannot take judicial notice of what the term ‘ ‘ equipment ’ ’ includes. Hence it was competent for the parties to show the situation existing at the time they contracted, and to receive testimony, not to contradict, but to interpret the term under consideration.

3. There was testimony which, if believed by the jury, showed that Meyer built the theater and installed the electrical appliances which the defendants claim plaintiff agreed to sell to them. He contends that all of them were built into the building by the original owner as and when it was erected and to him they belonged as fixtures; that when the parties were examining the plant with a view of purchasing, he explained to them that he did not own them or the piano, but that he owned certain scenery and other articles used in the conduct of the show house. They, of course, dispute this and contend that the contract included not only what he represented in his testimony that he owned, but also all other things that could in any way be counted as equipment necessary for the conduct of a theater. This matter was properly submitted to the jury and the decision as embodied in the verdict was against the defendants.

4. It is necessary to analyze the new matter in the reply to determine whether or not there is a departure from the original cause of action, or whether a new contract was formed, so that the plaintiff’s only rem*393edy would be an action to recover as for a breach of the new agreement. As stated above, the new matter of the amended reply recites that defendants took possession of the property and that Meyer had instituted an action against the plaintiff to recover rent under the original lease. It then states in effect that during the pendency of the action of Meyer against Bligh the defendants requested the parties litigant to postpone the same in order to enable them, the defendants here, to arrange with certain third parties whereby the former would be able to pay the plaintiff $2,000 due upon the purchase price of the theater, equipment, etc. This is not an averment that the defendants promised anything or agreed to perform any new arrangement. It merely amounts to a statement that they importuned the litigants for delay, to see if they could bring about a compromise. In substance it is that they intervened and got leave to imparl. . The next paragraph is to the effect that the plaintiff accepted said proposition “tentatively” and agreed at the time to take $2,000 in full payment of the amount due him, upon condition that it should be paid immediately. Substantially this is merely a statement that the plaintiff made an offer to the defendants, but it nowhere appears in the reply that the latter accepted the offer. Consequently, no new or different contract resulted. Taken by its four corners, the new matter in the reply is no more than a declaration that there were negotiations looking to a new agreement, but that they never ripened into a settled stipulation. The reply is not at variance with the complaint and does not constitute a departure.

In the absence of any exceptions to the charge of the court or any assignment of error on the admission of evidence, we must presume that the issue was fairly tried and submitted to the jury. Hence we must abide *394by its verdict, with the result that the judgment is affirmed.

Affirmed.

McBride, C. J., and Benson and Harris, JJ., concur.

Denied March 11, 1919.





Rehearing

On Petition for Rehearing.

(179 Pac. 238.)

The petition for rehearing denied.

Mr. Charles A. Hart, for the petition.

Messrs. McNary & McNary and Mr. Everil M. Page, contra.

BURNETT, J.

5. The document denominated “Petition for Rehearing” has had our careful attention and we find it to be a restatement, largely in identical language, of the oral argument advanced at the hearing. No new viewpoint has been presented in the discussion. When the original opinion was delivered, we had given the issue strict examination and we see no good reason to change the resulting decision.

An additional reason why the instant petition should be denied is found in 89 Or. 721, Rule 25, prescribed by this court for the transaction of business before it, reading thus:

“All applications for rehearing shall be by typewritten or printed petition, signed by counsel, setting forth without argument wherein it is claimed the Court has erred, and shall be filed within twenty days after the filing of the opinion. Counsel may accompany the petition with a printed brief of the authorities upon which they rely in support thereof, but *395no oral or typewritten argument will be heard or considered thereon. It will not be necessary for the adverse party to answer such petition unless requested to do so by the Court, but such answer must be printed. No disbursement will be allowed in favor of either party for a petition or briefs on an application for a rehearing.”

In very truth the instrument presented for our attention on rehearing is a typewritten argument on the facts. The rule cited requires that the brief and argument in support of the petition for rehearing shall be printed. The petition or motion itself should be couched in concise terms, separate from argument, so that the court can see at a glance the position assumed by the petitioner. Owing to the great mass of litigation coming to this court, it is imperatively essential that we have orderly rules governing the disposition of cases. The rule quoted was prescribed to the end that contentions of this kind should be reduced to the lowest terms of statement.

The petition before us does not in any sense comply with the established precept, and for this further reason it is denied.

Affirmed. Rehearing Denied.