Bull v. Payne, 84 P. 697

Bull v. Payne

84 P. 697 | Or. | 1906

Mr. Justice Hailey

delivered the opinion of the court.

1. Based upon the testimony of the plaintiff regarding the agreement to accept $300 and the farm from Lyttle when the title thereto had been cleared, the defendants asked the court to limit the amount of plaintiff’s recovery in this ■action to $300, but the instruction was refused. This action, is based upon the claim presented for the purchase price-of the mining claim conveyed by plaintiff to Lyttle, and not upon the subsequent agreement to accept $300 and the farm; the issue in the case being limited to the purchase-price at the time the mining claim was conveyed. • The instruction was properly refused.

2. It is urged that the court erred in refusing to instruct “that the plaintiff has failed to prove his case by competent or satisfactory evidence other than the testimony of himself. * Therefore your verdict should be in favor of the defendants.” The deed conveying the mining claim from plaintiff to Lyttle was in evidence. The lawyer who *583drew it testified that no consideration passed at the time it was drawn, and that'the claim was put in Lyttle’s name so he could sell the two claims, and several other witnesses testified to conversations with Lyttle, both before and after the sale of the claim, wherein he acknowledged liability to plaintiff in the sum of $1,000 on account of the claim, all of which evidence was competent, and, if satisfactory to the jury, was sufficient corroboration of the testimony of the plaintiff, within the rule laid down in Goltra v. Penland, 45 Or. 254 (77 Pac. 129). The instruction was therefore properly refused, and the question left to the jury as the judges of the facts in the case.

3. It is contended that the court erred in giving certain instructions, on the ground that such instructions admitted the right of the plaintiff to recover on his own testimony uncorroborated. We do not so read the instructions. The court expressly stated :

“You cannot rely upon his [plaintiff’s] testimony alone.”

Then, again:

“If Mr. Bull came in here without any evidence whatever except his own, he could not recover in this action.”

At the request of the defendants this instruction was given :

“I instruct you that, while the claimant Bull is a competent witness in this action, he cannot prevail unless he proves his case by some competent or satisfactory evidence other than the testimony of himself. His testimony may be used to corroborate other evidence in the case, but it is not sufficient in itself to establish his claim.”

The contention of the defendants therefore on this point is not tenable.

4. The defendants further except to that portion of the charge wherein the court states in substance that the contract for the sale of the land was invalid and that Lyttle could not comply with the contract, and that Bull had a *584right to rescind or sue for the cash or money due, on the ground that there was no evidence or issue upon which to base the instruction, and that it is against the law. This objection is based upon the theory of the defendants that plaintiff could only recover in this action upon the agreement to accept $300 and the farm, and not upon the original purchase price of the mining claim. All the testimony regarding the $300 cash and the farm was received without objection, and was admissible to show that Lyttle recognized some liability to plaintiff, and, while the issue in the case was not upon that agreement, it was proper for the court to submit the matter to the jury as having some bearing upon the real issue, and, in doing so, to explain the effect of such agreement and the rights of the parties under it. The agreement regarding the farm was not in writing and was without consideration, for the plaintiff had conveyed the mining claim long prior thereto, and did not agree to release his claim for the purchase price thereof until the title to the farm had been cleared and a deed given him. The court was therefore right in telling the jury that such agreement was invalid and that plaintiff had a right to sue for the original purchase price. There is nothing in the record to show that the agreement was binding upon either party at law or in equity.

The foregoing being the only assignments of error, the judgment of the lower court is therefore affirmed.

AFFIRMED.