Burness v. Honeyman Hardware Co.

143 P. 641 | Or. | 1914

Mr. Justice Eakin

delivered the opinion of the court.

1. There are a number of errors set out in the assignments, but they relate largely to matters admitted in the pleadings, which we need not notice at this time. Defendant the Portland Tool Works presents but one question, namely, whether the court erred in rendering judgment against the defendant Portland Tool Works after the plaintiff had failed to establish his right to a lien, or any other equitable relief. The defendant insists that there is no equity in plaintiff’s favor, and urges the case from that standpoint; but there was in the case a special fund from which plaintiff was entitled to payment, and in equity he had the right to look to that fund. The decree is not only for the judgment, but it directs that the Honeyman Hardware Company retain and pay out of funds in its hands the amount of said bill due the Portland Tool Works. This was a matter of equitable cognizance, and the court had a right to retain jurisdiction for the purpose of reaching that fund.

2. As to the cross-appeal, it involves a question of fact, and the court has found that the reasonable value of the additional labor and material is $250. The allegation of the complaint in relation thereto is that the value of said material and labor is $354.75, and is not denied by the answer. Only the authority of the plaintiff to furnish the same is questioned, and not the amount thereof, and, when allowed, must be granted in the full amount alleged.

Finding of fact No. 8 will be modified, by changing the $250, the amount of the bill, to $354.75, and the first conclusion of law modified, by making the $250, the amount of the claim allowed, $354.75.

The decree will be modified accordingly, and the appeal of the defendant Portland Tool "Works will be disallowed.

Modified. Rehearing Denied.

Mr. Chief Justice McBride, Mr. Justice Bean and Mr. Justice McNary concur.