Lead Opinion
delivered the opinion.
The plaintiff sues for money had and received, his complaint containing eight counts. The allegations are similar in all, except the last, wherein no assignment of demand was necessary to be shown, as the transaction involved was with the plaintiff personally. We therefore give the first, only, which is as follows, omitting formal averments: “That at various times between the first day of January, 1896, and the first day of June, 1897, at Portland, Oregon, W. A. Wells advanced and paid to defendants, as such partners, divers sums of money, altogether amounting to the sum of $1,200, to be used and invested by them in the purchase and sale of grain, namely, wheat, for him and on his account, in the board of trade of the City of Chicago, State of Illinois, at said time, less their commission on such purchase and sale. The defendants did not purchase nor sell any wheat or other grain during said period, or at any other time, for or on account of said W. A. Wells, in said board of trade or elsewhere, or otherwise use or invest said sums aggregating said amount of $1,200, or any part thereof, for or on account of said W. A. Wells, or earn or become entitled to any commission whatsoever.” Then follow allegations of the assignment of the claim, demand, and nonpayment. By leave of the court the complaint was amended during the trial so as to conform to the facts proved, by showing that the dealings were in “grain or pork,” instead of wheat, simply, and the defendants were permitted to file an amended answer thereto, which runs as follows: “Deny that at various times between
To obviate the formal amendment of the reply, the court made and entered an order as follows: “Upon ■the filing of defendants’ amended answer by leave of the court, setting up an additional separate defense by mutual accountings and settlements, being second ánd separate defense therein to each separate cause of action, and upon motion of plaintiff by his attorneys, it is ordered by the court that plaintiff have leave to amend his replication so as to deny each and every averment in said second separate defense to each separate cause of action, and allege that each and every of said averred accountings, settlements, and payments, and every item in any account'considered on any such averred accounting, and the assent of plaintiff or any of his assignors thereto, was induced and procured by defendants through fraud and false representations on their part, and mistake on the part of plaintiff and his said assignors, and that plaintiff’s replication shall be taken and deemed as so amended without filing any amended pleading or interlineation of his original replication.” At the time of
The evidence offered in support of the several causes of action was very similar in its nature, except as it pertains to the last, which was concerning the dealings and transactions had with the plaintiff individually, and hence the statement may with propriety be confined to one or two only of such causes. . The plaintiff was first called as a witness, and was shown certain statements of accounts, eight in number, marked, respectively, “AA,” “X,” “Q,” “JJ,” “KK,” “NN,” “EE,” and “L,” which were identified by him and then offered in evidence, whereupon defendants’ counsel objected, assigning as a reason therefor that they comprised a large number of transactions other than money had and received by the defendants from the plaintiff and his assignors, and were immaterial and irrelevant. In answer to the objection, counsel for plaintiff stated that the exhibits were offered for the purpose of showing the amount of money paid into the hands of Downing, Hopkins & Company, and the amount paid by them to each of the parties, and the dates, The defendants then interposed a further objection that the accounts do not show money had and received, and that all of them, except that of the plaintiff .individually, exhibit receipts of money far in excess of what is claimed by the .complaint. A special exception was also noted to the excess, but, notwithstanding, they were admitted in evidence. Those of Wells and Reidt, the assignors of two of the demands of plaintiff, forming the basis of the first and fourth causes of action, are as follows :
In connection with the Wells demand, eight receipts from Downing, Hopkins & Company, showing payments to them by Wells of eight several sums of money from time to time, aggregating $1,000, were offered, and, as it respects the Reidt claim, four receipts, showing payments to Downing, Hopkins & Company of $470, were offered, and all admitted, over objections. The statements of account were offered a second time, in connection with each assigned demand, when like objections were interposed as formerly, and it was further insisted that they were
These observations do not apply with equal force to the plaintiff’s statement touching his own account, because no set-off is pleaded to that cause of action, and the credits, less the gain, are not so largely in excess of the amount sued for. The reply being a departure, it could not support the complaint, much less would the evidence be competent to substantiate it. But it is claimed that the money which it is alleged that defendants had and received of plaintiff was otherwise shown. The record, however, does not bear out the contention. In the case of Reidt, the $400 sued for, with $70 additional, is shown, while, in the case of Wells, $1,000 only is thus proven of the $1,200 sued for ; but this could not in any event cure the error in admitting the statement of accounts.
Other errors have been assigned in the record and questions presented for our determination, but, as the case must go back, they may not arise again on a retrial; hence it is unnecessary to pass upon them , now. The. judgment below is reversed, and the cause remanded for such other proceedings as may seem proper.
Reversed.
Rehearing
On Motion eor Rehearing.
delivered the opinion.
The question of variance has been discussed, in the main opinion, but this further observation may be made : The accounts offered and admitted are incompetent, as they tend to establish a reply which constitutes in its purpose and effect a clear departure from the ground taken in the complaint. The purpose was theretofor obscured, but the proffer revealed it, so that it was error for this reason,’ if for none other, to admit them over the objection of the defendants. It is suggested that the plaintiff had never come to his rebuttal or the establishment of his defense set up by the reply, the defendants having rested without offering any testimony upon their part. The accounts, however, it must be admitted, had a potent tendency to prove their case as set up by the answer, but they at the same time countervailed it by establishing the allegations of the reply. They were not competent, therefore, at any stage of the trial. The first separate defense is in the nature of a plea of settlement, and the third is a set-off, in view of the theory adopted by the plaintiff as exhibited by his complaint.
Another matter should be mentioned in disposing of the petition for rehearing. By inadvertence, the writer omitted the word “other” from the opinion at one place in attempting to quote the language of the answer, namely, “any other sum or sums whatever,” and the correction will be made supplying it. There can be no significance attached to this misquotation, as the conclusion reached was based upon the language employed in the answer, and not upon that inadvertently used. This is quite apparent, however, as the language is elsewhere twice correctly quoted. Rehearing Denied.
Decided 12 August, 1901.
On Motion to Vacate the Judgment eor Costs.
delivered the opinion.
A judgment is as final when pronounced by the court as when entered and recorded by the clerk : 18 Ency. PI. & Pr. 438. When this court on April 8, 1901, announced, in handing down the opinion, that the judgment of the lower court was reversed, that‘instant our judgment, to all intents and purposes, became final; and the clerk, in the performance of his duty, having made a note of such decision when it was pronounced, thereafter amplified his memorandum to suit the facts of the case as made by the transcript, and thereupon entered it of record as of the date it was rendered. Plaintiff's counsel, in support of the principle for which they contend, cite the case of Uhe v. Chicago, M. & St. P. Ry .Co. 4 S. D. 505 (57 N. W. 484), wherein it was held that the legal effect of an order that all proceedings be stayed for a definite time is to stop further progress in the case at the point where such order attaches. The justice of such a rule must be conceded, but it can have no application
Motion to Vacate Overruled.
Decided 23 December, 1901.
On Motion to Retax Costs.
delivered the opinion.
This is a motion to retax costs. Judgment having been rendered April 8, 1901, against the plaintiff, the defendants two days thereafter filed a verified statement of their disbursements, which they claimed to be entitled to recover, containing, inter alia, the following items :
Cost of transcript on appeal________________________________________$816 15
Cost of printed abstiact (500 pages)________________________________ 500 00
Cost of. printed briefs (158 pages)___________________________________ 158 00
The clerk entered a judgment on the twelfth to the effect that the appellants recover their costs and disbursements in this court upon the appeal, allowed and taxed at $-. Plaintiff’s counsel filed a petition for a rehearing on the twenty-seventh, which was denied, and a motion to vacate the judgment as to costs and disbursements, filed June 21, on the ground that it had been prematurely entered, was also denied. Objections to said items of the cost bill were filed June 25, supplemented by tlie affidavit of Lansing Stout, deputy clerk of the circuit court of Multnomah County, showing that the sum charged for the transcript was $251.50, upon which the appellants were credited with $82.65 for copies furnished by them and included therein, and by the affidavit of S. B. Schwab,, a member of the firm which printed the abstract and brief, to the effect that the sums paid in full settlement
State of Oregon, County of Multnomah, in the Circuit Court.
Thos, J, Hammer v. F. O. Downing et al.
Woodward & Palmer to Dan J. Moore, Clerk of the Circuit Court, Dr,
September 23,1898. Copying transcript, etc.____________________$346 15
Or___________________________________________ 177 30
September 22, ’98. Received payment___________________________$168 85
Daw J. Moore.
It appears from the latter affidavit that this bill is in the handwriting of the deputy, but that the indorsement of the receipt of payment, and the signature appended thereto, were made by the clerk ; that the affiant called upon Stout and showed him said statement, and was informed by him that the books in the clerk’s office contained a memorandum of the facts as stated in his affidavit made at plaintiff’s request; that the affiant also saw Dan J. Moore, who told him that said bill was correct and made, as indicated, at the request of C. C. Palmer, one of defendants’ attorneys, to include the cost of copies of jjapers furnished by him, and used in making the transcript. The clerk August 13, 1901, allowed the defendants’ cost bill in full, on the ground that the objections thereto were not filed within the time prescribed by law, and two days thereafter plaintiff’s counsel filed a motion to retax the costs.
Note. — See Smith v. Day, post.