54 P. 949 | Or. | 1898
delivered the opinion of the court.
This is an action to recover a balance of $316.78 for sawlogs sold and delivered by the plaintiff to the defendant between the first day of December, 1894, and the first day of February, 1895. There is no dispute as to the number or price of the logs sold and delivered, but the defendant claims that its indebtedness to the plaintiff, by reason of such sale, had been extinguished prior to the commencement of the action, on account of its having orally accepted an order drawn on it by the plaintiff, and in favor of one C. "W. Nelson, in the following form: “Clatskanie, March 29, 1895. Messrs. Inman, Poulson & Co.: Please pay to the order of C. W. Nelson $327.85, and charge same to my account. C. H. Erickson.” The evidence shows that this order was drawn and presented by Nelson to the defendant for acceptance before the logs were delivered, but was not accepted in writing, although the defendant promised verbally to pay it when the logs should be delivered, if there was a sufficient amount du.e the plaintiff for that purpose, and, if not, to apply thereon whatever should be due him. The order, however, not being paid, was returned by Nelson to the plaintiff, who thereafter demanded of the defendant the balance due on the logs, and exhibited to it the Nelson order. The defendant refused to pay such balance until the order should be indorsed by Nelson, and the indorsement guaranteed; whereupon this action was commenced, resulting in a judgment in favor of plaintiff, and defendant appeals.
There are several assignments of error, but, as the rulings of the trial court to which they refer all grew
Affirmed.