49 P. 981 | Or. | 1897
This is a suit for an accounting. The facts are that on April 21, 1888, plaintiff and one Henry A. Hyde, as partners, entered into a contract with defendants by which it was agreed that the latter would from time to time ship to them, at Prairie City, Oregon, certain goods, wares, and merchandise, which they agreed to sell and remit the proceeds, less ten per cent, thereof, which they were to retain as their commission; that about April 1, 1889, Hyde assigned all his interest in this contract to plaintiff, who continued to carry out its terms until about October 1 of that year, when he had a settlement with the defendants, wherein there was found a balance against him of $490, which he settled by delivering certain personal property to defendants in payment thereof. Plaintiff admits having received from defendants large quantities of goods, wares, and merchandise, and that he sold the same, but alleges that he delivered to them
Plaintiff having alleged in the complaint that he never had an accounting with defendants, and having practically admitted in the reply that he had a settlement with them, which he seeks to avoid, it is contended by counsel for the defendants that to permit him to avail himself of the allegations of the latter pleading would be violative of the rule announced in the case of Lillienthal v. Hotaling Company, 15 Or. 371 (15 Pac. 630), to the effect that a plaintiff in an action or suit must recover, if at all, upon the facts stated in his complaint. We have no disposition to controvert the rule established in that case, but, assuming that plaintiff’s cause of suit is properly stated, we do not think the evidence submitted at the trial entitles him to the relief he seeks. The original statements of account, as prepared by plaintiff and defendants, and which were used in making, and furnished the basis of, their settlement, are in the record, and that submitted by the plaintiff contains the following item: “ Horses, $490.” This is evidently the property delivered to defendants in settlement of the amount then found to be due them, and, while plaintiff seems to think that this item refers to a band of horses delivered for another purpose, he admits offering Basche $50 to set aside the settlement and open the account. Just after this settlement was effected there was found to be due plaintiff from defendants the sum of $100,
Assuming, as we have, that the pleadings presented the issue of surcharging and falsifying a settled account, the burden was on the plaintiff to establish the facts so alleged: Hoyt v. Clarkson, 28 Or. 51 (31 Pac. 198). In this respect he has signally failed, in consequence of which we are compelled to conclude, as did the trial court, that, if there be any amount due either party, it is not discoverable from a careful examination of the evidence; and hence it follows that the decree must be affirmed, and it is so ordered.
Affirmed.