Ferguson v. Reiger, 73 P. 1040

Ferguson v. Reiger

73 P. 1040

Or.

1903

Check Treatment

Mr. Chief Justice Moore,

after stating the facts in the foregoing language, delivered the opinion.

1. It is contended by defendant’s counsel that the complaint does not state facts sufficient to constitute a cause of action, and that such defect was not waived by answering to the merits, nor cured by the verdict. Findings made by a court upon the facts in an action tried before it with*509out the intervention of a jury are deemed a verdict (B. & G. Comp. § 159), and, though a verdict will not supply the omission to state some fact essential to the cause of action, it will cure all formal defects in a pleading, and establish every reasonable inference that can be drawn from the facts stated : Houghton v. Beck, 9 Or. 325; David v. Waters, 11 Or. 448 (5 Pac. 748); Bingham v. Kern, 18 Or. 199 (23 Pac. 182). “The extent and principle of the rule of aider by verdict,” says Mr. Justice Bean, in Booth v. Moody, 30 Or. 222 (46 Pac. 884), “is that whenever the complaint contains terms sufficiently general to comprehend a matter so essential and necessary to be proved that, had it not been given in evidence, the jury could not have found the verdict, the want of a statement of such matter in express terms will be cured by the verdict, because evidence of the fact would be the same whether the allegation of the complaint is complete or imperfect. But if a material allegation going to the gist of the action is wholly omitted, it cannot be presumed that any evidence in reference to it was offered or allowed on the trial, and hence the pleading is not aided by the verdict.”

2. Tested by this rule, we think the complaint, which was not challenged by a demurrer, fairly states that on April 17,1901, the plaintiff was the conditional owner and in possession of a stock of merchandise, store fixtures, and a business enterprise, and that he was indebted to the defendant on account thereof in the sum of $700, whereupon he delivered said merchandise and fixtures and assigned said business to the defendant, who, in consideration thereof, canceled said indebtedness, and agreed to pay plaintiff on account of the transaction the sum of $250, and, not having done so, judgment is demanded therefor. We think the complaint, as quoted, in the absence of a demurrer, and after verdict, states facts sufficient to constitute a cause of action, and is adequate to support the judgment.

*5103. The court found, in effect, that plaintiff, as a compromise of his claim, agreed to accept $250 in payment of his interest in the stock of goods, store fixtures, and business, which sum the defendant promised and agreed to pay him therefor; but it is maintained by defendant’s counsel that the testimony given at the trial does not warrant such finding, and that the court erred in making it. The plaintiff, as a witness in his own behalf, in referring to his hesitancy in purchasing the stock of goods from the defendant, testified that the latter said to him: “You needn’t be afraid at all. If inside of two months you cannot make it go, you shall have every cent of your money back.” The witness detailed a further conversation he had with the defendant at the expiration of the time so specified, as follows: “ ‘Mr. Reiger, I am afraid I will have to give up the fight;’ and I told him the circumstances of the case, and why I had to do it. He said, ‘Well, what do you expect out of the business?’ and I said, ‘Well, I think I ought to have $300,’ as I had put in over $400 in the business; and he said, ‘Well, I cannot promise you $300, but I will guarantee you $250, and if I sell to good advantage I will give you $300.’ ” The witness further says : “I was to receive $250 positively, or $300 if he sold to good advantage; but that I was to be guaranteed the $250.” On cross-examination he further testified as follows: “Q. So you are positive, then, that it was the 18th of April that you first spoke to him about giving up the business? A. Yes, sir. Q. At that time you say that Mr. Reiger guaranteed you $250, or, if he sold to advantage, he would give, you $300? A. That was his words, if he sold to good advantage he would give me $300. Q. Then the agreement was not, as stated in your complaint, that he simply agreed to give you $250, but, if he sold to advantagé, he was to give you $300? A. That was how it was stated to me, if he sold to good advantage. I asked for $300 first. He said he would *511pay me $300, but he would only guaranty me $250. Q,. That is, if he did not sell? A. If he sold to good advantage, he added that he would give me $300. Q,. When did he give you to understand he would make his guaranty good? A. He spoke of it when he sold out. Q. When he sold out of the business? A. Yes, sir. Q,. Then you were to wait for what he guaranteed to give you until he sold out the business? A. Yes, sir.” It is argued that this testimony shows that no money was due the plaintiff until the defendant resold the stock of goods, and, as no such sale had been made, the court erred in making the finding of which the defendant complains. It will be observed that the witness in his cross-examination seems to confound the sum of $300 with that of $250, which he says he was to receive positively, or the former sum if the defendant sold the stock of goods to good advantage. It is true he says he was to be guaranteed the $250, but, as a guaranty is a promise to answer for the payment of some debt or the performance of some duty in case of the failure of another person, who, in the first instance, is liable therefor, it is evident that the witness did not understand the meaning of the term, in view of which the court construed his declaration, “I was to receive $250 positively,” as a statement that this sum was payable in any event. The testimony of this witness, though contradicted in every particular by that of the defendant, is not quoted to ascertain its truth or to determine its weight, but to show that the court might reasonably have deduced the conclusion therefrom that the defendant agreed and promised to pay plaintiff the sum $250 for the property received; and, there being some testimony upon which the finding can rest, it will not be disturbed.

4. The court having rendered judgment for interest on $250 from April 17, 1901, the time when it is alleged that the stock of goods was redelivered to the defendant, it is *512insisted by his counsel that an error was committed in this respect. A justice’s court has jurisdiction in actions for the recovery of money or damages only when the amount claimed does not exceed $250 (B. &. O. Comp. § 926), and judgments rendered in such actions bear interest at the rate of six per cent per annum : B. &. C. Comp. § 4595. It will be remembered that the sum claimed in the complaint is $250, and, this being the extent of the jurisdiction of a justice’s court, no judgment could have been given therein for interest antedating the judgment rendered.

5. An appeal from a judgment rendered in a justice’s court having been perfected, the cause is tried in the circuit court as if originally commenced therein: B. &. C. Comp. § 2246. Considering the complaint as having been originally filed in such court, we think it had no authority, in the present instance, to give a judgment for interest antedating its rendition, for the statute prescribing the form of complaint provides that it shall contain a demand of the relief which the plaintiff claims. If the recovery of money or damages be demanded, the amount thereof shall be stated (B. & C. Comp. § 67), and, as interest after the breach of a contract is recoverable only as damages (Seton v. Hoyt, 34 Or. 266, 55 Pac. 967, 75 Am. St. Rep. 641, 43 L. R. A. 634; Close v. Riddle, 40 Or. 592, 67 Pac. 932, 91 Am. St. Rep. 580, and note), the failure to demand the same in the complaint rendered the judgment therefor erroneous.

6. No exception appears to have been taken to this particular part of the judgment at the time of its rendition, and, observing the rule announced in Graham v. Merchant, 43 Or. 294 (72 Pac. 1088), the cause will be remanded, with directions to enter a judgment for the sum of $250, with legal interest from the date of the judgment appealed from ; the respondent to recover his costs in this court and in the court below. Conditionally Aeeirmed.