198 P. 912 | Or. | 1921
Lead Opinion
It is conceded that none of the supplies involved in this action were delivered to Townley but that all of them were delivered to Bidler. The plaintiffs claim that Townley agreed, before the supplies were delivered, to pay for whatever articles the plaintiffs might let Bidler have. Townley asserts
Townley happened to be in Baker with his automobile in September, 1916, and while there he drove to the plaintiffs’ garage, where he met Perkins with whom he was acquainted, although they had not met for some time. On this occasion Townley and Perkins engaged in conversation; and it is conceded that no third person was present or heard what was said by the parties. In the course of the conversation Townley learned that the plaintiffs sold Studebaker and Dodge cars. Although Bidler was engaged in the plumbing business he had devoted some of his time to selling automobiles as a “side issue.” It seems that Bidler had a prospective purchaser and Townley was aware of that fact. Townley claims that he asked Perkins if the plaintiffs would let Bidler táke an automobile and sell it on commission; and Townley also says that he told Perkins that if the plaintiffs would permit Bidler to take a car under such an arrangement, he would be responsible to the plaintiffs for the return of the car or its value. It is conceded that Perkins was not at that time acquainted with Bidler although Bidler says he was in Baker when Townley talked with Perkins. There is no evidence that Bidler met Perkins or that either one saw the other on that day.
A few days after the conversation between Townley and Perkins the plaintiffs delivered an automobile
According to the testimony of Bidler:
“The next spring, early in the spring, I changed the plumbing-shop over slightly, so I would have some room to do some repair work on cars, and at that time I went to Baker City, needing some extras and some tires,” and made arrangements with the plaintiffs for “tires and so on.”
When using the words “next spring” Bidler meant the spring next after the conversation between Perkins and Townley. Perkins testified that—
“in the fall or the next spring [meaning the fall or spring next after the conversation between Townley and Perkins] Mr. Bidler came up and wanted to put in a stock of tires and tubes and such stuff as that, and we told him all right.”
It is thus far made to appear that Townley and Perkins had a conversation in September, 1918, and this is the only conversation attributed to Townley
We now direct attention to the evidence upon which the plaintiffs base their claim that Townley’s promise was broad enough to include liability for both automobiles and accessories. Referring to the conversation which occurred in September, 1916, Perkins testified as follows:
“He [Townley] said he had a son-in-law that was. quite a mechanic, and he was running a plumbing establishment in Union, and he wanted to know if we could let him take some cars and sell them there for us, * * and so I told him he could sell in our territory; we would let him have cars, and he could sell them in our territory. And so in a short time after that why Mr. Bidler came up and got a car, and sold it, and I think he sold either four or five, and we allowed him his commission of 10 per cent, and in a short time, — let’s see, I think it was in, — it was in the fall or the nest spring, why he came up and wanted*328 to, — Mr. Bidler came up and wanted to put in a stock of tires and tubes and sucb stuff as that, and we told him all right. Mr. Townley told me when he was there, that anything we done with Mr. Bidler would be all right, — to let him have what he wanted, and so we did.
“Q. And what did he say about setting his son-in-law up in business?
“A. Why, he said he was inclined to be mechanical, and he would like to set him up in business, and have him doing business; that he could run the automobile business with his plumbing establishment that he had there; that there wasn’t quite enough, — wasn’t much to do in the plumbing, and he could handle both together.
“Q. On whose credit did you extend, — did you deliver these goods?
“A. Well, on Mr. Townley’s principally, because we didn’t know Mr. Bidler, only just what Mr. Townley had told us is all.
‘ ‘ Q. How long after you had this conversation with Mr. Townley was it that Mr. Bidler came up and started to take merchandise away from your place of business ?
“A. Well, it wasn’t a great while.”
The record shows that Perkins also testified as follows :
“Q. Mr. Townley at that time told you, that if you would let Mr. Bidler have the car for sale, — on a commission basis, was it?
“A. Yes.
“Q. That he would be responsible for either the return of the car, if it was not sold, — in proper condition, or the payment of the price of the ear, if it was sold?
“A. Well, he just said this way, — anything we would let him have would be all right, — he would make it all right.
*329 “Q. Now his talk at that time was about the car, wasn’t it?
“A. Yes.
“Q. He wanted you to let him have a car?
“A. Yes.
“Q. And if you would let him have, a car, he would be responsible for it?
“A. I suppose so; that is the way we understood it.
“Q. That is what he said?
“A. Yes. * *
“Q. But you were talking about Mr. Bidler getting a car, weren’t you, — that is what you were talking about?
“A. Why no, we wasn’t exactly. Of course he was figuring on starting Mr. Bidler up, as I understand, in the business there in connection with his plumbing, and of course he would have to have parts.
“Q. Well, I am not talking about that; he didn’t say he would have to have parts?
“A. No, he didn’t come right out and say ‘parts.’ ”
Whenever the plaintiffs received an order from Bidler for accessories they entered the items of the order on a pad containing sheets for carbon copies of penciled entries; and from this pad the plaintiffs took the original penciled sheet and sent it with the accessories to Bidler and retained the carbon copy. Although these carbon memorandums were offered in evidence we do not find them with the files. However, we understand from the record that they were entered under the name of Bidler. Perkins testified that from these carbon memorandums entries were posted in a loose-leaf ledger and that ordinarily this was done within a day after filling the orders. There is in the files a purported copy of a part of a loose-leaf ledger and from this copy we learn that the entries were posted in the ledger under the heading of “J. W. Townley by M. L. Bidler.” Perkins testified that each month the plaintiffs sent a statement of the account to Bidler. In addition to sending statements to Bidler, Perkins said: “Every time I would meet him, I would talk it over” with Bidler and he never denied the bill.
Perkins also testified:
“We just sent statements to Mr. Bidler for quite a while and we didn’t get any returns from it, * and finally we sent Mr. Townley a statement direct.”
We understand from the record that the statement sent to Townley was first mailed in the fall of 1917 and probably after the delivery of all the accessories involved in this litigation.
If the defendants had jointly promised to pay for the supplies, Townley would be liable; but there is not a scintilla of evidence showing that they promised to pay the plaintiffs: Bryant v. Panter, 91 Or. 686 (178 Pac. 989); Welch v. Marvin, 36 Mich. 59; 13 C. J. 573.
The judgment is reversed as to Townley, and the cause is remanded, with directions to enter a judgment in favor of him. Reversed and Remanded.
Rehearing
On Petition for Rehearing.
(199 Pac. 920.)
Rehearing Denied.
Mr. O. B. Mount, for the petition.
Messrs. Crawford & Eakin, contra.
In Banc.
In our original opinion we ruled that the trial court should have directed a verdict for Townley as requested by him. Our ruling was based upon the theory that the promise made by Townley was a collateral promise to answer for the debt of Bidler and therefore was within the statute of frauds.
The plaintiffs petitioned for a rehearing, because, they say, (1) Townley waived the statute of frauds; and (2) Bidler was not served with notice of appeal, with the result that this court is without jurisdiction.
Townley, as appellant, contended in his printed brief presented at the original hearing that the statute of frauds applied; and this was the only contention presented by him. In their printed brief presented at the original hearing the plaintiffs confined their efforts to an attempt to show that Townley’s promise was direct and not collateral and therefore not controlled by the statute of frauds. Indeed, aside from the single point that under our Constitution no fact tried by a jury shall be otherwise re-examined in any court, every point and every citation made by the plaintiffs under the heading “Points and Authori
We are unable to concur with the plaintiffs in their contention that Townley waived the bar of the statute of frauds. The language of our statute is exceedingly drastic; for in express terms it is declared that “the agreement is void” unless there be a writing, and evidence “of the agreement shall not be received other than the writing”: Section 808, Or. L.; Lueddemann v. Rudolf, 79 Or. 249, 258 (154 Pac. 116, 155 Pac. 172). See, also, Taggart v. Hunter, 78 Or. 139, 155 (150 Pac. 738, 152 Pac. 871, Ann. Cas. 1918A, 128).
It may be assumed on the authority of Hawley v. Dawson, 16 Or. 344, 347 (18 Pac. 592)) that an appellant must in some form raise the question of the statute of frauds in the trial court before he can rely upon the statute in the appellate court. Our statute declares that an agreement to answer for the debt of another is void unless in writing; and hence in contemplation of law there is no contract unless there is a writing. The complaint alleges that at the request of Bidler and Townley the plaintiffs sold and delivered to the defendants the goods, wares and merchan
Townley did raise the question of the statute of frauds; for he not only excepted to certain instructions given by the court but he also excepted to the refusal of the court to give certain instructions, among which was a requested instruction directing the jury to return a verdict for Townley. In their printed brief the. plaintiffs say:
“The only question was and is was the stuff furnished on the credit of Mr. Townley, and the jury found it was.”
And again the plaintiffs say in concluding their printed brief:
“The only point in the lower court appellant reserved for review, was whether the promise of Townley was original or collateral and the jury decided it adverse to his contention.”
Townley’s pleading enabled him to invoke the protection of the statute of frauds; and he did invoke the statute by excepting to the giving and to the refusal to give certain instructions: Hawley v. Dawson, 16 Or. 344, 347 (18 Pac. 592). See also note in L. R. A.
If Bidler was an adverse party within the meaning of Section 550, Or. L., as judicially construed, then the failure to serve Bidler with notice of appeal prevented the acquirement of appellate jurisdiction; and consequently if this court has not acquired jurisdiction we must, even though the question is first raised on a petition for a rehearing, dismiss the appeal and leave the judgment as we found it. If a reversal or modification of the judgment would injuriously affect Bidler, then he is an adverse party, and in that event notice to him was indispensable since he has not appeared in the appellate court: D’Arcy v. Sanford, 81 Or. 323, 327 (159 Pac. 567). Will a modification or reversal of the judgment so far as it relates to Townley injuriously affect Bidler? Bidler expressly admitted in his answer that on his own individual account he purchased items of merchandise from the defendants and he “assumed liability for anything not paid for, but alleged that the bill was fully paid. ’ ’ Townley denied the making of any promise to pay for any of the items mentioned in the complaint. On the evidence presented by the plaintiffs, even when viewed in a light most favorable to the plaintiffs, the debt was that of Bidler, and the promise of Townley was at the most a promise to pay the debt of Bidler. In the answer filed by Bidler he says the debt was his alone. As pointed out in the original opinion there was not a scintilla of evidence showing that Bidler and Townley jointly promised to pay the plaintiffs. If, then, the judgment stands undisturbed the plain
The petition for a rehearing is denied.
Rehearing Denied.