22 Or. 452 | Or. | 1892
This cause was referred to W. L. Colvig, Esq., to take and report the evidence to the court, together with his findings of law and fact. Upon the. filing of the report, numerous exceptions were made both by the plaintiff and defendant, and the same were so modified that a decree was entered against the defendant for the sum of four hundred and ten dollars and ten cents, from which the defendant has brought this appeal. The referee found that
The court, after hearing the same, sustained plaintiff’s exceptions to four of the findings of the referee: that which allowed defendant credit for one hundred and sixty-four dollars, back salary paid J. C. Conn; that which charged plaintiff eight hundred and seventy-six dollars and forty-five cents on account of taxes on his excess of capital; that which finds for defendant one thousand and seventeen dollars and eleven cents, damages for plaintiff’s refusal to lease the mill; and that which finds for defendant eight hundred dollars, damages for plaintiff’s refusal to join in repairing the mill; and, as a result, re-stated the account, so that plaintiff was charged thirty thousand five hundred and eighty-two dollars and thirty-seven cents, and credited
The contention between these parties is as to sundry items which go to make up the aggregates found by the referee, and present mainly questions of fact. As to these, the evidence is conflicting, and we could only say approximately which party is right and which wrong were we to enter into an examination of the evidence and attempt to restate the account. We have carefully read the evidence, and examined the ruling of the court below pn each contested item, and are disposed to think the weight of the evidence is with the court’s finding. The disputed items are, plaintiff’s claim, allowed by the referee and court, for interest on his excess of capital in the business; defendant’s claim that plaintiff shall be charged with the taxes on this excess, which was allowed by the referee and disallowed by the court; defendant’s claim for interest paid by him to J. C. Conn on his account, disallowed by the referee and court; defendant’s claim for one hundred and sixty-four dollars, back salary paid J. C. Conn, allowed by the referee and disallowed by the court; defendant’s claim for receipts of postoffi.ee, disallowed by the referee and court; defendant’s claim that plaintiff should pay for a wagon belonging to
The defendant’s counter-claims are both for damages, unliquidated and speculative. Upon neither of them could a suit have been maintained by the defendant and against the plaintiff. (Hill’s Code, § 393.) They are, therefore, not counter-claims in equity, but matters of legal cognizance. But in addition to this, the second counter-claim seems to be based on the theory that if one tenant in common will not repair, or consent that his co-tenant shall repair, he may sue such co-tenant in equity for damages. We deem a more particular discussion or statement of these matters unnecessary.