23 Or. 68 | Or. | 1892
Hill’s Code, § 581, makes the writ of review concurrent with an appeal. The plaintiffs could have taken an appeal or could have had the action of the justice’s court reviewed. They chose to take an appeal, and the only issue the circuit court could try on the appeal was the one raised in the justice’s court upon the demurrer: Hill’s Code, § 2130. The circuit court had no authority to allow an answer to be filed after the demurrer was overruled, as this would have changed the issue made in the justice’s court from one of law to that of fact: Currie v. Southern Pacific Co. 21 Or. 566 (28 Pac. Rep. 884). Under the statute as it now exists, a demurrer is a very dangerous pleading in a justice’s court, as the party aggrieved may take an appeal instead of review, and the circuit court can try nothing but the issues made in the justice’s court, and has no authority upon appeal to allow any change to be made in the issues, nor can it upon appeal remand the cause for further action to the justice’s court.
This disposes of all the questions presented in this appeal except the one raised in the justice’s court. Did the complaint state facts sufficient to constitute a cause of action? The gist of the action grows out of the request for the performance of the services and the
Applying this rule to the complaint, does it state a sufficient consideration to support the alleged promise ? It states that the defendant received and retained the sixty dollars and thirty cents, the benefit of the labor, which was the consideration for the promise. “A consideration is some benefit or advantage accruing to the the party promising”: Buchanan v. International Bank, 78 Ill. 500. The complaint, having alleged that in consideration of plaintiffs having done the labor and furnished the material by mistake on defendant’s contract, and defendant having received the benefit thereof and retained the same, had thereafter expressly promised to pay the amount to plaintiff, which the demurrer admits, thereby raised an implied request on the part of the defendant to the plaintiff to do the work and furnish the material, is sufficient.
The complaint having stated sufficient facts to constitute a cause of action against the defendant, there was