188 P. 164 | Or. | 1921
Lead Opinion
“An appeal to the Supreme Court, if not taken at the time of the rendition of the judgment or decree appealed from, or at the time of making the interlocutory order appealed from, shall he taken by serving and filing the notice of appeal within sixty (60) days from the entry of the judgment, order or decree appealed from * * ”: Section 550, L. O. L., as amended, Gen. Laws, 1913, Chapter 319.
“The time within which an act is to be done, as provided in this Code, shall be computed by excluding the first day and including the last, unless the last day falls upon Sunday * * or other nonjudicial day, in which case the last day shall * * be excluded”: Section 531, L. O. L.
The method of computing time within which a notice of appeal should be served and filed may be said to have been in a state of uncertainty until the case of United States Nat. Bank v. Shefler, 77 Or. 579 (143 Pac. 51, 152 Pac. 234), in which case it was held by this court, though not without dissent, that the day following the entry of a judgment was to be excluded in the computation of time.
This rule, having been generally accepted by the profession, wall be adhered to, although there are authorities holding a contrary doctrine.
Computing the time according to the rule in the case cited, the appellant is within the statute, and the motion to dismiss will be overruled.
Motion to Dismiss Overruled.
Opinion on the Merits
On the Merits.
(198 Pac. 236.)
From Clatsop: James A. Eakin, Judge.
In Banc.
Under date of April 8, 1918, G. E. De Golia, as purchaser, signed a writing addressed to the Elgin Motors Company, Inc. The writing was in substance an order for the delivery of an Elgin automobile for the price of $1,250. The Elgin Motors Company, Inc.„ acting through C. S. Tates as manager and salesman indorsed upon the paper a written acceptance of the order. The writing may therefore be called a contract whereby the Elgin Motors .Company, Inc.,, agreed to deliver and De Golia agreed to buy an Elgin automobile for the price of $1,250. When De Golia signed the order he paid to C. S. Tates the sum of $20-on the purchase price; and Tates led De Golia to believe that the ordered automobile would be delivered to De Golia at the end of about four weeks. On May 4, 1918, Tates told De Golia that he had “a whole carload of cars,” but that he did not have enough money to pay the freight bill. Tates requested De Golia to advance the additional sum of $380 on the price of the automobile ordered by De Golia, and Tates stated that if De Golia would advance such amount “you can have your car to-morrow morning.” De Golia informed his wife of the request and after consultation they concluded to comply with Tátes’ request. De Golia delivered to Tates a check for $36 and at the same time signed a note for $650 payable to the order of “Elgin Motors Co., Inc.,” and
Frederick Andersen was a resident of Astoria from some time prior to April 8,1918, until October 26,1918, when he died. After his death an administrator of his estate was appointed. Claiming that Frederick Andersen and C. S. Tates had been partners doing business under the name of the Elgin Motors Company, Inc., and engaged in buying and selling Elgin automobiles from April 7, 1918, to October 26, 1918, inclusive, G. E. Be Golia filed with the administrator of the estate of Frederick Andersen, deceased, a claim for $400. The administrator rejected the claim on Becember 27, 1918, and thereupon Be Golia presented his claim to the County Court for allowance. The county judge disallowed the claim and Be Golia immediately appealed to the Circuit Court. A trial by jury resulted in a verdict and judgment in favor of Be Golia. The administrator appealed.
Affirmed.
For appellant there was a brief presented by Messrs. Norblad & Hesse.
The order of the county judge disallowing the claim is dated April 25, 1919. The notice of appeal served and filed by De Golia is dated May 13, 1919. On May 15, 1919, De Golia filed and served an undertaking on appeal obligating him and his two sureties
“to pay all damages and costs which may be adjudged to him on the appeal, not exceeding the sum of $100, to which amount we acknowledge ourselves jointly and severally bound.”
It is manifest that the appeal was taken in good faith and that the insufficiency of the first undertak
When at the trial in the Circuit Court the claimant rested, the administrator also rested without offering any evidence; arid consequently when the case was submitted to the jury there was no evidence to be considered except the evidence offered by the claimant. After both the claimant and the administrator had rested, the latter moved that the jury be directed to return a verdict for the administrator, for the reason that the claimant had failed to prove that a partnership existed between Tates and Andersen. The court denied the motion for a directed verdict and submitted the cause to the jury.
The court instructed the jury “that the only question involved in the case for your determination is whether or not you believe the testimony of plaintiff introduced before you for the purpose of determining whether or not the relation of partnership existed between” Andersen and Tates at the time De Grolia contracted for the automobile and paid the sum of $400.
The court further instructed the jury as follows:
“Tou have heard the evidence that has been offered in that particular and I instruct you that if that evidence is true, that is sufficient to establish the position or the relationship of partnership between those*104 parties, but tbe question for yon to determine is whether or not that evidence is true or not, and if you believe it is true, then your verdict should be for the claimant, G-. E. De Golia, for the amount of his claim.”
The administrator duly excepted to the giving of the foregoing instructions. There was no contradictory evidence.
“It is for you to determine whether the witnesses told the truth; if you find that they did tell the truth then you must as a matter of law conclude that Andersen and Tates were partners and return a verdict for the claimant”: Flower v. Barnekoff, 20 Or. 132, 144 (25 Pac. 370, 11 L. R. A. 149); 20 R. C. L. 849.
C. A. Nyquist testified that at some time prior to-May 31, 1918 (probably late in April or early in May), Andersen requested him to clean and store an Elgin automobile. The car had been run only a hundred miles. Andersen told Nyquist “to lock it so that nobody could touch it without his permission.” This automobile was afterwards delivered to a Mrs.
“Well, I want to store that because I paid the wholesale price on that car and Yates — Yates has taken a couple of deposits on the car, and I want to keep it here for safekeeping.”
When asked: “Did he state what arrangements there were between him and Yates?” Nyquist answered :
“Well, he said that he was supposed to get half of the profits. He was supposed to pay the bill of lading on the cars until they got down here and as soon as Yates got the notes fixed up, he was supposed to get half of the profits, to get his money back.”
Nyquist was asked the following question:
“You don’t know whether Mr. Yates had any ownership or any interest in that car at all, do you? Nyquist answered as follows: Well, not any more than what the doctor [Andersen] told me that he had taken deposits on the car, but the doctor still owned it because he had paid the bill of lading on it.”
After Yates had refused either to deliver the automobile or repay the sum of $400, De Glolia caused him to be arrested. The grand jury investigated the •charge against Yates and among other witnesses the grand jury called Andersen as a witness.
E. C. Judd, who was district attorney in June, 1918, the time of the grand jury investigation, testified that Andersen told the grand jury that Andersen
‘‘ advanced the money for the bills of lading and the payment for the cars were to be made to Dr. Andersen, and they divided the profits on the deal. * * His explanation to them of the transaction was, that he put up the money, held the car until Mr. Yates completed the transaction, then the party who Mr. Yates completed the transaction with, Dr. Andersen got the money and Dr. Andersen turned the car over and gave Yates his half of the proceeds.”
“That upon the execution of such contract, and in accordance with the terms thereof, your petitioner duly paid to said Yates and Andersen the sum of $400 which was then and there received by said Yates and Andersen.”
In other words, the verified claim shows that the claimant made a contract with the Elgin Motors Company, Inc., and that the latter was represented by C. S. Yates. The verified claim alleges that the relationship between Yates and Andersen was that of a partnership. If the Elgin Motors Company, Inc., was the business name of the partnership, then Andersen is liable for the $400 paid to Yates because each partner is an agent of the other. If the Elgin Motors Company, Inc., was merely the business name under which Andersen did business as an individual, he is nevertheless liable because Yates was unquestionably acting as the agent of Andersen. We must presume that the jury obeyed the instructions of the court; and in view of the instructions given by the court and the verdict returned by the jury, we must
When the complaint was offered in evidence, counsel for the administrator stated that he was making the offer for the purpose of showing “that he sued C. S. Tates, doing business under the name and style of Elgin Motor Car Company.” The record shows that De Golia had previously testified on cross-examination and without objection that he “began suit against Tates on this same matter some time in July”; and hence counsel for the administrator had already accomplished the purpose for which he stated
The facts found by the jury show that Tates was the duly authorized agent of Andersen; and therefore the estate of the latter is liable for moneys received by Tates while acting within the scope of his agency.
The judgment is affirmed.
Affirmed. Rehearing Denied.