Doty v. Klamath Lake Nav. Co.

134 P. 1183 | Or. | 1913

Mr. Justice Eakin

delivered the opinion of the court.

The testimony tends to show.that, as the manager was about to go away, he gave a copy of the contract with Doty to Colonel Wilkins, and directed him to attend to the removal of the boat and see that Doty performed his contract. Such direction necessarily included the loading of the boat on the cars, either by the railroad company or by someone else. The court did not assume to determine the authority of Colonel Wilkins on any of these questions, but submitted them to the jury, which found in favor of the plaintiff.

There are but three assignments of error. The first is as to the refusal of the court to exclude from the consideration of the jury the testimony relating to the employment of Doty by Colonel Wilkins to move the boat across the county road and load it on the cars; the second relates to certain instructions; and the third to the entry of judgment. We find no error in any of these particulars. There was no issue in the case as to a modification of the written contract, or'of Doty’s failure to perform it, as assumed by defendant; and the employment of Doty by Wilkins seems to have been necessary in order that the plaintiff might complete his contract; and it was reasonably within Wilkins’ authority to superintend tbe removal of the boat. The question was submitted to and passed on by the jury. There was no error in the instructions objected to.

The judgment is affirmed. • Affirmed.

Mr. Chief Justice McBride, Me. Justice Bean and Me. Justice McNary concur.