Camp & DuPuy v. Lauterman, 152 P. 288

Camp & DuPuy v. Lauterman

152 P. 288 | Or. | 1915

Mr. Justice Benson

delivered the opinion of the court.

1. There are, several assignments of error, but we deem it necessary to consider only the question as to whether or not the court erred in denying the motion for nonsuit. Plaintiff contends that the question of nonsuit is not before this court by reason of the fact that not all the • testimony of plaintiff is included in the bill of exceptions. The entire testimony, however, is attached to and made a part of the bill of exceptions, and since the amendment of the Constitution (Article VII, Section 3), this is sufficient to bring the matter fully before us.

2, 3. It is manifest that there is but one serious issue in the case: Did the plaintiff comply with the terms of the contract sued upon sufficiently to entitle it to recover? Defendant contends that the obligation to furnish vouchers for moneys expended in the employment of labor is an essential element of the agreement, and we think this contention is fully sustained by reading Section 5 thereof. The plaintiff in both complaint and *138reply expressly admits that such vouchers were not furnished, and seeks to substitute therefor certain canceled checks, which are simply orders upon a bank for the payment of various sums of money to different persons, without any notation as to the purpose for which they were issued, or upon what consideration. The ordinary meaning of “voucher” is a document which shows that services have been performed or expenses incurred. It covers any acquittance or receipt discharging the person or evidencing payment by him. When used in the connection with disbursement of moneys, it implies some instrument that shows on what account or by what authority a particular payment has been made, or that services have been performed which entitle the party to whom it is issued to payment: 4 Words and Phrases, 1215; First National Bank of Chicago v. City of Elgin, 136 Ill. App. 453, 465. The canceled checks referred to ai'e not vouchers in any sense, as they give no information whatever as to their purpose or connection. It is admitted in the evidence that the labor payments must have amounted to at least $2,000, and consequently there was no question of substantial performance to be submitted to the WW-

4. There is an attempt in the complaint to estop the defendant from demanding the labor vouchers, because he was sometimes present when laborers were paid, and knew that plaintiff was not then taking receipts for such payments, but made no protest. This allegation is not sufficient to constitute an estoppel, since it does not appear therefrom that the alleged acquiescence of the defendant caused the plaintiff to alter its position to its injury. On the contrary, the plaintiff asserts that its failure to secure receipted vouchers *139resulted from its interpretation of the terms of the written contract.

The judgment of the trial court will therefore be reversed, and a judgment of nonsuit entered here.

Reversed. Nonsuit Entered.

Mr. Chief Justice Moore, Mr. Justice McBride and Mr. Justice Burnett concur.