MacMahon v. Duffy, 59 P. 184

MacMahon v. Duffy

59 P. 184 | Or. | 1899

Mr. Chief Justice Wolverton,

after stating the facts, delivered the opinion of the court.

1. Some exceptions were taken to the refusal of the court below to admit certain testimony, and to its admission, over objections, of other testimony, which rulings, it is claimed, were prejudicial to the appellant. The bill of exceptions sets forth that, “after the opening statement of counsel, the parties, plaintiff and defendant, offered and introduced each, respectively, in support of the issues on his part, the evidence as shown by the transcript of the evidence hereto attached; all of which is hereby incorporated in and made a part of this bill of exceptions. This transcript of the evidence embraces and includes all the evidence offered or introduced upon said trial, and is made a part of the bill of exceptions for the reason that the exceptions reserved by appellant cannot otherwise be presented to the supreme court.” It then shows that exceptions were taken to the rulings of the court, on defendant’s objections to certain questions propounded to witnesses, without any statement in reference thereto which would in any way serve to show the materiality or competency of the testimony rejected or admitted; thus imposing the labor upon this court of searching through a voluminous transcript of the evidence, and formulating therefrom a statement showing the materiality or otherwise of the matter with reference to which complaint is made. Such is not our province, and, if we should undertake it, it might differ materially from that which counsel would formulate, and the court below approve, in a bill of exceptions; and for that reason we will not *153attempt to determine the questions arising upon, or growing out of, the introduction or rejection of the evidence. As illustrative of the principal and practice here involved in the formulation and settlement of the bill of exceptions, see Eaton v. Oregon Ry. & Nav. Co. 22 Or. 497 (30 Pac. 311); Hamilton v. Gordon, 22 Or. 557 (30 Pac. 495); O’Connor v. Van Hoy, 29 Or. 505 (45 Pac. 762) .

2. Complaint is made that the court should have instructed the jury, at the request of defendant, that no recovery could be had upon the second cause of action, because the complaint fails to state when the amount claimed fell due. The cause is based upon an implied contract arising from the performance of professional services by plaintiff for the defendant, at his request, and the reasonable value of such services is claimed as his compensation. The presumption in such case is that the compensation is due when the services are performed, and the dates of such performance are definitely alleged.

Another assignment of error is predicated upon the court’s refusal to instruct that, if plaintiff agreed to receive for his services the amount of the recovery in excess of $600, then that he could not recover on the contract set out. The assignment is unavailable, for two reasons : (1) The refused instruction was substantially covered by the general one, wherein the jury was charged that it must find for plaintiff upon the contract alleged or not at all; and (2) the defense interposed was that plaintiff abandoned his contract, and the instruction was not pertinent to -that theory.

3. And, lastly, it is insisted that the verdict is inconsistent with the issues made by the pleadings ; that, the first cause being based upon an express contract for the payment of the sum of $280, and the latter upon an implied contract for the payment of $50, it is apparent the jury split up the first demand, which it is claimed was *154beyond its power, and that it should have found for the whole sum, or for defendant on the count. But the defendant ought not to be heard to complain that the verdict against him was not as large as it might have been under the pleadings. Such condition might afford matter of complaint for the plaintiff, but not for him.

Aeeirmed .