122 P. 1122 | Or. | 1912
delivered the opinion of the court.
The evidence tends to show that in July, 1906, plaintiff was employed by defendant to sell bonds of the Home Telephone & Telegraph Company of Portland at a net commission of 5 per cent and a stock commission of 5 per cent where the stock bonus allowed the purchaser did not exceed 50 per cent of the par value of bonds sold. In October of the same year his employment was extended so as to include bonds in the Puget Sound Home Telephone Company. Plaintiff declared on one contract, as shown in the statement, and it is claimed that the evidence discloses two distinct contracts, made at different times, and that the court should have required the defendant to elect upon which he would rely for a recovery, and that the proof offered constituted such a material variance from the pleading that plaintiff should not have been permitted to recover. In our view of the case it is not material whether the later contract should be treated as a mere oral amendment to the original contract or as a separate agreement. In either case it was defendant’s privilege to have denied the contract set up and to have pled his version of it, or to have moved the court to compel plaintiff to elect which cause of action he would rely upon.
“I move at this time that the court disregard all testimony in relation to the MacKenzie deal pleaded in the complaint, because it has been shown by the testimony of the plaintiff that it was on a contract which has not been pleaded at all. I would like to reverse that by making the same motion as to the Willis and Scandinavian deal. He said he had two contracts, and the testimony shows they had. One was in regard to sale of Home Telephone Company bonds and one in regard to the sale of Puget Sound Telephone Company bonds, and, if they had two contracts, he must have set them up and cannot recover upon one contract in this suit.”
Ross v. Jones, 47 S. C. 211 (25 S. E. 59); High v. Southern Pac. Co., 49 Or. 98 (88 Pac. 961). But, in substance, there was only one contract in existence at the time the bonds were sold by plaintiff. Defendant was dealing in the bonds of two corporations. In July he employed plaintiff to sell the bonds of one of these, and in October he made an agreement with him to sell bonds of the other, and all these sales took place after the October agreement. The general agreement was merely an enlargement of plaintiff’s powers and duties, and, instead of being a new contract, it was a new term added to the former one. It is clear that defendant was not misled by the form of pleading adopted.
“As to the matter of this institution taking some of the bonds, I think that can be arranged, provided we can get the telephone company’s account. I may run over to Portland one day this week, and, if you are going to be in the city, I may find time to discuss the proposition more fully.”
Later the secretary of the telephone company wrote to plaintiff that he had made arrangements for an account at the Scandinavian Bank. Nothing more appears to have been done, and while matters were in this situation defendant stated to plaintiff that Mr. Morris of the Oregon Trust & Savings Bank was a stockholder in the Scandinavian Bank, and asked plaintiff to let him “pass the deal with the Scandinavian Bank up to Morris,” as he thought Morris could sell them more than $10,000 worth of bonds. To this plaintiff assented, and Morris sold the bank $25,000 worth of bonds. There was no positive agreement to purchase on the part of the bank when plaintiff ceased his efforts. He had succeeded in getting the cashier to say that, under certain circumstances, he thought a sale could be arranged, and there
7. The conclusion reached in regard to the sale to the Scindinavian Bank would necessitate a reversal of the judgment but for the fact that the amount of that claim is definite and severable from the remainder of the judgment. Following the rule announced in Gardner v. Kinney, 60 Or. 292 (117 Pac. 971), and cases there cited, we will affirm the judgment on condition that plaintiff, within 30 days from this date, expressly remit the amount included in the finding as to the sale to the Scindinavian Bank.
In case of failure to do this, the judgment will be reversed, and a new trial ordered.
Affirmed Conditionally.
Rehearing Denied.