Edwards v. Mt. Hood Const. Co.

130 P. 49 | Or. | 1913

Opinion by

Mr. Chief Justice McBride.

1. The first question to be considered is whether or not there was any testimony to go to the jury upon the case made by plaintiff. We think there was. Plaintiff through Packer assumed to see Mrs. Edwards paid. To do this it instructed White to deduct from the wages of the laborers, which it had assumed to pay, the sums due from them to Mrs. Edwards. Had it refused absolutely to. apply these sums upon the laborers’ board bills due Mrs. Edwards, they would have had a lien upon the road for the wages so deducted and unpaid, so that it was virtually compelled either to pay the laborers the whole amount of their wages, or to do the equivalent by paying 75 cents per day out of the amount to Mrs. Edwards. Having kept this money out of the wages due the workmen for the latter purpose, it should not be permitted to enrich itself at the expense of Mrs. Edwards, nor of the laborers.

2. The action for money had and received is a form of recovery greatly favored by the courts on account of its equitable character. 27 Cyc. 849. An action for money had and received may be sustained by any evidence showing that the defendant had possession of money of the plaintiff which in equity and good conscience he ought to pay over to him. 8 Ene. Ev. 629. In the case at bar the defendant did not directly receive money from the laborers, but it received the equivalent of money in the discharge of their claims, and this is sufficient. 8 Ene. Ev. 628; 27 Cyc. 852.

3. The court erred in permitting the plaintiff to relate the various hardships suffered by her by reason of the nonpayment of the money, but the testimony as to the principal matter was uncontradicted by any witness, and in any event the jury could not have returned a different verdict, no matter where their sympathies lay.

4. It was error for the court to express its opinion of the evidence in the presence of the jury. The duty of a judge is to see that both sides of a case have a fair hearing, and that the jury renders an impartial verdict, without any suggestion or comment from the court as to what verdict ought to be rendered. To say to an attorney in the hearing of the jury that his case is “infamous,” and that his client shall never have a judgment, and especially before the client has had an opportunity to present his side of the case, is language that should never be used in a court of justice. Upon the case'presented by the plaintiff there was certainly some ground for the supposition that defendant had dealt unfairly with the plaintiff, but the defendant’s story had not been heard, and, when heard, might have given the case an entirely different aspect. The writer knows from experience on the circuit bench that it is sometimes very difficult for a judge to refrain from making comments on a case during the progress of the tria.1, and especially where an apparent injustice seems to have been perpetrated; but after a reversal or two, occasioned by this practice, he concluded to go, not to the ant, but to the meek and lowly oyster, to “consider its ways and be wise,” and to keep the judicial mouth shut. He commends the example of the silent oyster to all trial judges.

5,6. The defendant introduced no testimony whatever, leaving the testimony of plaintiff and her witnesses wholly uncontradicted. The witnesses were not impeached, their testimony was reasonable and probable, and, in the absence of any contradiction, the jury was bound to receive it as true and render a verdict accordingly. Had there been any contradictory evidence introduced, so that a question of the preponderance of evidence one way or the other had been presented to the jury, we should be compelled to reverse this case; but, as it now stands, the evidence is all on the side of the plaintiff, and notwithstanding the errors complained of the verdict must stand.

Other errors in the rulings of the court are assigned, but we do not deem them well taken.

The judgment is affirmed. Affirmed.