Lancaster Tire & Rubber Co. v. McGraw, 195 P. 815

Lancaster Tire & Rubber Co. v. McGraw

195 P. 815 | Or. | 1921

BENSON, J.

1. The assignments of error challenge the sufficiency of the findings of fact and suggest, also, *408that such findings are contrary to the weight of the evidence. As to the latter, it is enough to say that this court cannot concern itself with the weight of the evidence, for if there is any substantial evidence to support a finding, we are bound thereby.

2, 3. The serious contention of the plaintiff is, that the so-called findings of fact are not statements of fact at all, but mere conclusions of law. If this contention is justified, it requires no pitation of authority to reach the further conclusion that such attempted findings cannot sustain a judgment based thereon. The essential finding is as follows:

“That plaintiff claims in its complaint filed herein to have sold certain automobile tires and an inner tube to the defendant during the months of August and September, 1918, for the agreed price of Three Hundred Fifty-seven and 98/100 ($357.98) Dollars, and this court finds that no such sale took place and that the. automobile tires and one inner tube claimed to have been sold to the defendant were not purchased by the defendant nor was any part thereof purchased by. the defendant herein.”

The testimony offered by the plaintiff is to the effect that plaintiff’s salesman solicited the defendant to purchase automobile tires from plaintiff, explaining to the prospective purchaser that, while plaintiff did not sell direct to individuals, but to corporations, or large business concerns, they would sell the tires to him, and bill them to the corporation of which defendant was an officer, thereby enabling him to secure the liberal discounts which were granted such larger concerns; that with that understanding, defendant purchased four tires for an automobile belonging to the foreman of the Centralia Mining Company of which defendant was president, and four tires for an automobile belonging to the defendant personally, all of which were billed *409to the Centralia Coal Mining Company, with the distinct understanding between the defendant and plaintiff’s salesman, that defendant was the actual purchaser, and that the billing of the merchandise to the corporation was for the sole purpose of enabling the defendant to secure the discounts which the business rules of the plaintiff corporation would not allow to an individual. The evidence on behalf of the defendant is to the effect that, while the automobiles were the private property of the individuals who used them, they were used constantly in the service of the Centralia Coal Mining Company, which was to pay for the upkeep thereof; that when defendant ordered the merchandise in question, he did so expressly for the Centralia Coal Mining Company and not otherwise, and that there was never any agreement or understanding such as was testified to by witnesses for the plaintiff. It. will thus be observed that there is a direct conflict in the testimony as to who was, in fact, the purchaser of the merchandise described in the complaint. The plaintiff asserts that it was sold to and purchased by the defendant, who, in turn, declares that it was purchased by and sold to the Centralia Coal Mining Company. The complaint alleges that it was sold to the defendant, which is denied by the answer. The finding of the fact made by the trial court is to the effect that the sale was not made to the defendant, and that the defendant had not purchased the same or any part thereof. If this is not a finding of an ultimate fact in the case, then it is equally true that the pleadings raise no issue of fact pertaining to a sale.

Tested by the rule clearly announced and fully discussed in Oregon Home Builders v. Montgomery Inv. Co., 94 Or. 349 (184 Pac. 487), the finding made by the court is one of fact and not a conclusion of law, *410except as the latter may possibly be involved in the question of fact.

4. It is also urged that the findings of fact are inadequate for the reason that no finding is made as to the agreed price, or the partial payment of the claim. This contention is also disposed of by the case of Oregon Home Builders v. Montgomery Inv. Co., 94 Or. 349 (184 Pac. 487), wherein this court says:

“Generally, a special verdict must pass upon all the material issues; and yet a special verdict will be adequate if it states sufficient findings on an issue which ultimately determines the case and necessarily supports the judgment rendered so that other issues in the controversy become immaterial.”

So, in the present case, if the defendant has purchased no merchandise from the plaintiff, the value of the merchandise and the sums paid on account of a sale to someone else are immaterial, and cannot in any way affect the judgment.

Finding no error in the record, the judgment is affirmed. Affirmed.