110 P. 412 | Or. | 1910
delivered the opinion of the court.
This court has pursued a very liberal policy in construing the power of a trial court to settle and sign a bill of exceptions; the rule adopted being that, because the statute has fixed no time in which the bill should be presented and allowed, the matter is within the discretion of the trial judge, and, when exercised, his decision or action will not be disturbed. In Henrichsen v. Smith, 29 Or. 475 44 Pac. 486: 44 Pac. 496) it was held that the failure of an appellant to submit his bill of exceptions within the time limited by the trial judge, after the expiration of the term, does not prevent the judge from thereafter signing it, if otherwise proper. For a general review of the Oregon cases on this subject, see Hayes v. Clifford, 42 Or. 568 (72 Pac. 1.) The service and filing of the notice of appeal, and the execution and service of the undertaking thereon, does not of itself deprive the lower court of jurisdiction or confer jurisdiction on this court; that is accomplished by filing within 30 days thereafter the transcript in the case with the clerk of this court. Section 553, B. & C. Comp. Under the circumstances presented by the motion, the judge had power to act, and, having acted, this court cannot disregard what was done. The motion is therefore overruled.
“He (Ferbrache) told me to let the men have anything that they wanted, not to exceed what they had coming to them, and he would see that it was held out of their pay.”
This tends to show only an agreement personal to Ferbrache, and not with defendant; and, unless some other competent evidence was offered, tending to show that the defendant was operating some business- under the management of Ferbrache, that the employees referred to
The foregoing is a brief statement of plaintiff’s testimony, upon which he relies to establish defendants interest in the business and its liability upon Ferbraehe’s dealings with plaintiff, excepting perhaps there were shown declarations of Ferbrache to plaintiff and to third parties to the effect that he was president of the corporation; that he owned 80 per cent of its stock; that he was the corporation, because he owned most of the stock, and that he had turned over to the corporation the mill and logging business. But there was other evidence that he owned no more than a bare majority of the stock, and that others, having no connection with the transactions in question, owned and held a substantial amount of the stock of the defendant corporation. Ferbrache is not a party to this action, and his acts and declarations, made while acting outside of his duties and authority as an officer of the defendant, are not competent evidence against it.
The foregoing items were to be paid first in the order mentioned out of the proceeds derived from the sale of the lumber. Then the contract declares that Ferbrache and Shiria were to be equal partners in the profits arising from the manufacturing of the timber into lumber under this contract. The former built the logging roads and furnished the machinery and equipment necessary to do the logging. The latter built the mill, but before its completion he sold it to Ferbrache. In the meantime Ferbrache organized the defendant corporation, and sold and conveyed to it the timber, and assigned to it his interest in the above-mentioned contract, but reserved to himself the obligation to do the logging and to receive the profits arising therefrom. The result of all these transaction was to leave the defendant the owner of the timber, but obligated by the Shiria contract to sell it to Ferbrache for $1.00 per M. stumpage, and one-half of the net proceeds of manufacturing it into lumber; while, on the other hand, Ferbrache, by purchasing Shiria’s interest, was to do the logging, cut the timber into lumber at a cost not to exceed $7.00 per M. board measure, and to sell and dispose of the lumber. It must be plain from this relation of the parties that the defendant assumed no liability by virtue of the contract for the expenses incurred, either in the logging operations or in the opera
It follows that the court erred in denying the motion for a nonsuit, and the judgment must be reversed and the cause remanded for a new trial. Reversed.