64 P. 659 | Or. | 1901
delivered the opinion.
The plaintiff sues for a balance claimed to be due him on the purchase price of certain saw logs sold and delivered by him to the defendant, of the alleged value of $13,832.72, of which amount he has paid $11,883.50. The defendant denies that he received logs of that value, or of any greater value than $11,004.36, including stumpage, or that he paid plaintiff any other or greater sum than $11,093.83, and affirmatively alleges that the logs were purchased by him in pursuance of an express contract in writing, subsequently modified by verbal agreement respecting the manner of ascertaining the quantity, which was to be determined by the amount of lumber manufactured therefrom at the mill; and, further, to the effect that no charge should be made for logs out of which merchantable lumber could not be cut of the length of 12 feet or over; and, for a further and separate defense, sets up several accountings alleged to have been had between the parties of all matters of business in which they were mutually concerned, the last of which was had on October 15, 1898, whereby it was agreed that there was a balance of $104.98 due the defendant. Subsequent transactions are alleged to have taken place between them, whereby such indebtedness was reduced to the sum of $89.47, for which judgment is asked. All these matters are put in- issue by the reply. .
The defendant asked the court to give the jury, among others, the following instructions:
“No. 9. If you find from the evidence that on or about the fifteenth day of October, 1898, the defendant rendered to the plaintiff the account which he claims in his answer to have delivered to- the plaintiff at that time, showing the balance due from the plaintiff to the defendant of $104.98, and that plaintiff had an opportunity to object to its correctness to defendant, but failed to-“do- so- until December 17, 1898, and that after receiving the statement of account of October 15, 1898, the plaintiff continued to deal with the defendant in buying- supplies for his logging camp and supplying the defendant with logs, and did not object to the correctness of the account rendered him by defendant until December 17, 1898, being about two months after receiving the said account of October 15, 1898, then I instruct you that under the law that account of October 15, 1898, became an account stated between the plaintiff and defendant to the time of its date, and its correctness cannot-be questioned in this action, and, as a basis of arriving at what verdict you should give herein, it is your duty to- accept that account as correct, and that at the time (October 15, 1898), there was a balance of $104.98 due from the plaintiff to the defendant, and that that balance was correct.”
“No. 11. In regard to the construction of contracts, the
This the court refused to do, and exceptions were saved. An exception was also saved to- instruction No. io of the general charge, whereby the jury were told “that before a debtor can become bound by such a statement of account, it must embrace the entire transactions between the parties.” Judgment having been awarded the plaintiff, the defendant appeals.