Daly v. Larsen, 46 P. 143

Daly v. Larsen

46 P. 143 | Or. | 1896

Opinion by

Mr. Justice Wolverton.

There is but one question in the case, and that is do the findings support the judgment? We think not. The several causes of action are for work and labor done and performed at the instance and request of the defendant, and the statement of each *538contains all the allegations necessary to a recovery upon an implied contract. These were all controverted by the answer, and the findings of fact should have been as broad as the material issues made by the pleadings: Drainage District Number Four v. Crow, 20 Or. 535; Pengra v. Wheeler, 24 Or., at page 539; Jameson v. Coldwell, 25 Or. 199; and Moody v. Richards, 29 Or. 282 (45 Pac. 777). The court below seems to have treated the action as based upon the so-called time checks, and finds that they were duly issued, etc., hut the plaintiff does not count upon these checks. They are evidence of indebtedness, and no doubt arose out of the transactions which plaintiff sets up, yet it is not deducible from the fact of their issuance that the alleged work and labor was done and performed, or that it was. so performed at the instance of defendant, all which plaintiff was called upon to prove in establishing the implied contract to pay the reasonable worth of such services, as well as to produce evidence from which its value might be determined. These are facts to be established in invitum, and it was therefore incumbent' upon the court below to make its findings respecting them so that the law may be applied and judgment entered accordingly. Let an order be entered reversing the judgment, and remanding the cause for further proceedings.

Reversed.