142 P. 782 | Or. | 1914
Lead Opinion
delivered the opinion of the court.
“It was held that it was essential to constitute a family expense that the thing for which the expenditure was incurred should have been kept for use in the family. It is the expenses of the family which, under the statute, are chargeable on the property of*211 both husband and wife. This implies, we think, that the expense must be incurred for something used in the family, or kept for use, or be beneficial thereto.”
We think the statute in question, providing that “the expense of the family and education of the children are chargeable upon the property of both husband and wife, or of either of them, and in relation thereto they may be sued jointly or separately,” means the expenses for the immediate sustenance and comfort of the family. It does not contemplate expenses incurred in the management of a business conducted by either spouse, or by both of them. It seems from the complaint that the defendants were engaged in farming and fruit-raising, and in the course thereof employed the plaintiff to labor for them in carrying on that enterprise. The complaint does not state facts sufficient to bring it within the statute last quoted.
“An act to prohibit the issuance of non-negotiable acknowledgments of indebtedness in payment for wages due employees,- providing how acknowledgments of such indebtedness shall be paid, fixing the time when certain wages shall become due, and providing for the collection of reasonable attorney’s fees in actions to recover wages.”
Section 3 of that act, being Section 5068, L. O. L., provides:
“In any action for the collection of any such order, check, memorandum, or other acknowledgment of in*212 debtedness, or in any action by an employee against an employer for the collection of wages, if it is shown that such order, check, memorandum, or other acknowledgment of indebtedness, or said wages were not paid for a period of 48 hours after proper demand for the payment thereof, the court may, in its discretion, upon entering judgment for the plaintiff, include in such judgment, in addition to the costs and disbursements otherwise prescribed by statute, a reasonable sum for attorney’s fees for prosecuting said action; provided, such employee shall have given not less than three days’ notice of his intention to quit his employment.”
Here no question is made about any non-negotiable acknowledgment of indebtedness mentioned in the title of the act,' of which this section is a part, and the facts stated in the complaint do not bring this action within the purview of the statute. Eliminating, as we must, the question of the liability of husband and wife for family expenses, and the other question of action upon non-negotiable acknowledgments of indebtedness for wages, we have left only one cause of action properly stated in the complaint, viz., for labor and services rendered at the special instance and request of the defendants. The court, therefore, was right in overruling the motion to elect, for there was no election to be made under the complaint in this action. Moreover, in Harvey v. Southern Pac. Co., 46 Or. 505 (80 Pac. 1061), it is held that it is within the discretion of the court whether to order an election in such cases or not.
5. The second error assigned is that r
“The court erred in overruling appellant’s objection to the testimony of the plaintiff and in permitting him to answer concerning the agreed value of the services rendered.”
“The counterclaim * * must be one existing in favor of a defendant, and against a plaintiff, between whom a several judgment might be had in the action, and arising out of one of the following causes of action 1. A cause of action arising out of the contract, or transaction set forth in the complaint, as the foundation of the plaintiff’s claim. * * ”
All that is said in the answer concerning the tort alleged is that it happened during the time the plaintiff was working for the defendants. No fact is stated showing that it grew out of or was connected with the labor performed. It does not follow that because the wrongs of which complaint is made happened at or about the time the services sued on were being rendered, they arose out of the transaction set forth in the complaint. It does not come within the purview of a counterclaim as defined by Section 74, L. O. L.
The court was right in all its rulings questioned, and the judgment is affirmed.
Affirmed. Rehearing Denied.
Rehearing
On Petition for Rehearing.
(143 Pac. 924.)
delivered the opinion of the court.
The petition for rehearing in this case strongly urges that the original opinion did not correctly state the fact when it said:
“All that is said in the answer concerning the tort alleged is that it happened during the time the plaintiff was working for the defendants.”
This statement is strictly correct, as shown by the answer appearing in the abstract. The defendant contends, however, that during the trial the court permitted an amendment to the answer by adding to the end of the paragraph of that pleading containing the counterclaim, these words “said conversion growing out of the same transaction as mentioned and described in plaintiff’s complaint. ’ ’ The bill of exceptions reveals that the defendant’s counsel asked permission to make such an amendment, to which the court responded after argument: “I would be inclined to hold your amendment sham anyway. ’ ’ After further argument counsel stated: “I would like to be permitted that amendment for the purpose of that record,” and the court responded, “Yes, certainly over the objection.” Nothing further is shown in the record indicating whether or not the counsel for the defendants availed himself of that permission and actually made the amendment; but the answer appearing in the abstract does not contain the amendment.
We adhere to the former opinion.
Affirmed. Rehearing Denied.