58 P. 861 | Or. | 1899
delivered the opinion.
This is an action at law, brought by the assignee of several extramen employed by the Board "of Fire Commissioners of the City of Portland to recover the difference between their salaries as fixed by the charter and the amount thereof as fixed by a resolution of the board, and which they agreed to receive for their services, and did actually so receive. Upon the merits the questions involved are substantially the same as those presented in De Boest v. Gambell, 35 Or. 368 (58 Pac. 72), and for the reasons given in the opinion in that case the judgment herein is reversed, and the cause remanded, with directions to enter a judgment in favor of the defendant city.
delivered the opinion.
This case was submitted with that of De Boest v. Gambell, 35 Or. 368 (58 Pac. 72), and practically on the same argument, and it was, therefore, naturally assumed that the questions involved were substantially the same in both cases, and that the judgment in the De Boest Case would control in this. Hence no opinion was written in the case now under consideration, nor was any particular examination made of the record. It appears, however, that, while the De Boest Case was decided upon a demurrer to the answer, this was tried on the merits, and findings of fact made, which it is claimed by the respondent show that no agreement, written or otherwise, was ever made by the plaintiff’s assignors to accept the reduced salaries in lieu of those fixed by statute. The questions presented by the two cases are, therefore, in fact not identical, and, as this case has never been fully argued or considered upon its merits, the petition for rehearing will be allowed, and it is so ordered.
Rehearing Granted.
delivered the opinion.
At a rehearing of this cause it was insisted that the court erroneously assumed that the facts were the same as in the case of De Boest v. Oambell, 35 Or. 368 (58 Pac. 72), which was argued and submitted at the same time, and that, in consequence of such hypothesis, an error was committed in reversing the judgment. The complaint contains eleven causes of action, founded upon the claims of the hereinafter named persons, who, it is alleged were employed by the City of Portland as extra men in engine companies numbered 1 and 2 and truck company No. 1 at an annual salary of $780 each, who, having served for a specified time in said employment, were paid on account thereof the sum of $20 per month, there remaining due each the further sum of $45 per month, which, for the time said persons were employed, amounted as follows: A. E. Austin, $736.50, H. J. Blaesing, $414, John McNeely, $348, J. M. Campbell, $442.50, Charles B. Judge, $630, Stewart Creighton, $1,182, A. G-. McClane, $1,182, Z. T. Elliott, $1,812, Gus Brill, $1,812, W. E. Jacobs, $862.50, and Fred B. Jacobson, $135; and that each of said claimants, for a valuable consideration, assigned his claim to plaintiff. The answer, after denying the material' allegations of the complaint, avers that the Board of Fire Commissioners of the City of Portland allowed all extra men in said companies the right to engage in other employments, subject only to such calls as might be made upon them in the performance of the duties demanded by the city, in consideration of which each of said claimants, before entering defendant’s employ, distinctly agreed to perform all the duties incumbent upon him for the sum of $20 per month, which had been paid to and received and accepted by each of them in full payment for his
The case at bar having been argued and submitted with that of De Boest v. Gambell, it was assumed and understood that the facts involved in each case were identical. An examination of the latter case shows that it was alleged in the return to the alternative writ of mandamus that De Boest agreed with the Board of Fire Commissioners of the City of Portland to perform the duties of assistant chief of the fire department for the sum of $100 per month, in pursuance of which he had been paid and accepted such sum in settlement of his claim against the city. A demurrer to such return having been overruled, judgment was given for plaintiff, in reversing which it was held by this court that, while the action of the board of fire commissioners in reducing the salary of such officer was illegal and void, inasmuch as he agreed to work for the reduced amount, and in pursuance thereof accepted the monthly salary agreed upon, the contract being entirely executed, he could not recover
In the case at bar there is no finding upon the allegation in the answer that, in pursuance of an agreement entered into between the City of Portland and plaintiff’s assignors, they accepted the sum of $20 per month in full payment of their claims. If the court had found that such an agreement existed, that it had been fully executed, and that plaintiff’s assignors had accepted the reduced salary in full payment of their claims, such finding would not have supported the judgment rendered, notwithstanding the agreement might have been without consideration. The findings of fact, stripped of their legal conclusions which are not deducible therefrom, support the judgment, which is affirmed. Affirmed.
Motion Overruled.
delivered the opinion.
Mandate Modified.