120 P. 749 | Or. | 1912
delivered the opinion of the court.
This action was before this court on appeal and is reported in 56 Or. 383, (107 Pac. 476: 108 Pac. 121). A full statement of the case is there given, and need not be repeated here.
In our judgment, every question, except some exceptions to rulings of the court on the introduction of evidence, is settled by the opinion above cited.
The principal contention of counsel for defendants is that, granting that there was sufficient evidence of a contract to pick and care for the hops and hold them, subject to the decision of the Supreme Court, in the case of Meyer v. Livesley, 45 Or. 487 (78 Pac. 670; 106 Am. St. Rep. 667), then pending on appeal, plaintiff failed to show performance, and that a suit, brought by him against Livesley for conversion of the hops (Meyer v. Roberts, 50 Or. 81: 89 Pac. 1051: 12 L. R. A. [N. S.] 194: 126 Am. St. Rep. 733), was a repudiation of the alleged contract. Precisely the same contention was made at the previous hearing. In their able brief on that hearing, counsel say:
“The plaintiff himself made default in the alleged contract when he sued for the alleged conversion of the the hops. This breach was in a most material matter. After such breach, he cannot sue on the express contract which he himself refused to perform.”
In the opinion this court say:
“The replevin action related to the ownership of the hops after they had been severed, while the present action concedes that he had no right to either, but that he has expended $3,185 thereon beneficial to defendants, and which they promised to repay. The agreement was*57 made in contemplation of the uncertainty of the pending litigation, and was independent of and beyond the terms or obligations of the lease, and had no relation to the matters involved in the former suit or action, and plaintiff is not estopped nor the action barred thereby.” 56 Or. 383 (107 Pac. 476: 108 Pac. 121.)
It is claimed that the refusal of the court to strike out the answer of the witness J. H. McNary, to a question propounded on cross-examination, was error. The whole colloquy is as follows:
Q. “Do you know what was done with the hops ?”
A. “Yes; I do.”
Q. “You know of your personal knowledge?”
A. “I know to my satisfaction. I do know; but I was not there.”
Q. “Do you know what was done with the hops ?”
A. ‘T was informed that Mr. Livesley took a copy of the decree of the Supreme Court, and went to the man that had possession of these hops in accordance with this understanding, and represented to him falsely that he had a mandate from the Supreme Court, compelling him to turn the hops over. The boy in charge was of a timid character, and by reason of these threats turned them over to him.”
Counsel for defendants moved to strike out the answer as irrelevant, incompetent, and immaterial, and not responsive to the question. The answer seems to have been drawn out after the witness had practically
The judgment is affirmed. Affirmed.