54 P. 311 | Or. | 1898
delivered the opinion.
This is an action to recover money alleged to be due on account of insurance secured by plaintiff for the defendant. This action was here on a former appeal, and, the judgment having been reversed (Foste v. Standard Insurance Co. 26 Or. 449, 38 Pac. 617), the cause was remanded; whereupon plaintiff, by leave of court, amended his complaint, the material parts of which are as follows: “That heretofore, to wit, during the years 1891 and 1892, the plaintiff, at the special instance and request of defendant, performed for defendant labor and service? as a special agent to solicit accident and life insurance for the defendant company, for which defendant promised and agreed to pay plaintiff a commission, to wit, a stipulated percentage in cash, namely, twenty per cent, of all moneys on premiums collected by defendant company on such insurance secured by plaintiff; that heretofore, on or about the thirtieth day of September, 1892, there was due and owing to plaintiff the sum of $295.08 from defendant on account of work and labor
It is insisted that the court erred in permitting plaintiff to offer in evidence a letter purporting to have been written to him from Omaha, Nebraska, by “The Standard Life & Accident Ins. Co., F. Lyon, Cashier,” inclosing a statement of plaintiff’s account, claimed to have been with “Geo. W. Hall, Manager,” showing that there was due plaintiff the sum of $295.08. The writer, referring to Hall in this letter, said: “While our late manager doubtless made promises to you that he did not and could not fulfill, yet I believe he fully expected to do so when they were made, and used every effort to do so. That he did not was due to his overestimate of his ability to fulfill his promises, and not from any dishonest intention.” This letter, like that of' Marks, was admissible in evidence for the purpose of enlightening the jury as to the meaning of the phrase, “ our late manager.”
It is contended that the account inclosed in Lyon’s letter having been stated, but not pleaded as such, the court erred in admitting it in evidence. The account had not been stated, for the evidence fails to show that
It is also maintained that the court erred in failing to grant defendant’s motion for a judgment of nonsuit, but, without quoting further from the testimony, we think the evidence introduced was sufficient to raise an inference of defendant’s liability, and hence it follows that the judgment is affirmed.
Aeelrmed.