89 P. 386 | Or. | 1907
Lead Opinion
delivered the opinion of the court.
1. These two items, the claim for damages for injury to the hop plants and for the insurance premium paid, are very defectively pleaded, but the reply treats them as counterclaims, and they ivere so regarded at the trial; therefore, unless otherwise disposed of in. that court, they are issues made by the pleadings, and the court should have made findings on such issues: Daly v. Larsen, 29 Or. 535 (46 Pac. 143).
2. Defendants admit their liability upon the note for principal and interest, and tendered the amount thereof into court. This constitutes payment, and it is clear that they are entitled to be reimbursed therefor out of the price of the hops. It is a counterclaim which defendants were entitled to plead as against Don Sing; for it was clearly understood between them that the signing of the note was a part of the advances to Don pro-A'ided for in the contract, and plaintiff took the claim subject to every counterclaim held by defendants at the time of the purchase. The amount tendered into court is a payment on the
The item of $50 claimed by defendants as payment appears from the evidence to be part of the $250 payment credited in the complaint. The lower court finds the fact correctly as to the $150 duebill, that it is to be paid out of the hops, and, as plaintiff owns the duebill and the claim for the price of the hops, it is proper to ignore it in the judgment, as defendants are not entitled to deduct it from the price of the hops, unless it has been paid by them.
3. Whether Gee He was a joint owner or partner with Don Sing in the crop of 1904 is immaterial. It could only be a question between themselves, and could not affect Don Sing’s liability to defendants for advances under the lease.
For the errors here suggested, the cause will be reversed, and remanded to the court below for such further proceedings as may be deemed proper, not inconsistent with this opinion.
Reversed.
Rehearing
On Motion eor Rehearing.
delivered the opinion of the court.
' 4. It is claimed by this motion that the failure of the lower court to find upon the defendants’ counterclaim for damages was not excepted to in the lower court, and cannot be reviewed here, although assigned as error. This question was not suggested at the argument, but- the findings in law actions are entered in the journal, and, with the pleadings, is part of the judgment roll; and, if any error of the court below is disclosed therefrom, it may be relied upon in this court without an exception thereto. Section 172, B. & C. Comp., provides that “no exception need be taken or allowed to any decision upon a matter of law when the same is entered in the journal, or made
“If questions arise upon the trial and exceptions are taken, and the findings, either of law or fact, cannot properly show what rulings the court made thereon, the same can only be reviewed on bill of exceptions as in an ordinary jury trial.”
Also, there must be findings of fact sufficient to sustain the judgment. The rule is well settled that all material issues must
The question of defendants’ claim for insurance money was specially alleged as an item of counterclaim. This was denied, evidence taken thereon, and a special request for a finding, and is not included even by inference in any finding.
As to the counterclaim for credit for the amount of the note, $158.50, as between Don Sing and the Stephensons, Don would owe them this amount when the Stephensons'paid it; and it' was to come out of the hops. It is not a question whether Louie ■was a party to that arrangement. Louie could not deal with Don in relation to the hops without inquiry as to the Stephen-sons’ interest therein. The Stephensons had possession of the hops by the terms of their lease to indemnify them against
The motion is denied. Reversed: Rehearing Denied.