Miller Lum. Co. v. Davis, 185 P. 462

Miller Lum. Co. v. Davis

185 P. 462 | Or. | 1919

Lead Opinion

HARRIS, J.

1. The defendant contends that the court invaded the province of the jury by stating that “proof would not be required to be very extensive.” This language was used by the court in the course of the examination of the first witness for the plaintiff and after the witness had been asked but six questions. The witness, who was the president of the plaintiff corporation, testified that .the company sold the building materials to the defendant in September or October, 1916; and he was then asked to “state what the circumstance of that sale was and how it came about.” The attorney for the defendant objected to the question “unless it is confined to the contract which is alleged in the complaint, the contract for the stipulated and agreed value of $145.04”; and the attorney for the defendant further objected to any testimony “relative .to the reasonable value or anything except an agreed and stipulated value as alleged in the complaint.” The trial judge overruled *510■the objection; but before doing so he explained to the' attorneys, not to the jury, his views concerning the legal question raised by the objection. The court said to the attorneys:

■ ‘ ‘ The plaintiff will have a right to show a contract, and of course he will be bound by his allegations in the complaint. He can show a contract and show that there is now due and owing $145.04. That would make his case. It would amount almost to a stated account and proof would not be required to be very extensive. I say the proof in this case, if confined to Mr.'Myers’ suggestion, would amount to a stated account. I take it under the objection, you will be entitled to show a contract and to show the amounts due. If that is the nature of the objection, I will overrule the objection.”

Thus it is seen that the language, of which the defendant now complains, was used by the trial judge for 'the purpose of apprising the attorneys of his views of the law and in order'to explain the reasons for his ruling. The defendant does not complain of any instruction given or refused by the court. The charge to the jury was a careful and concise, and yet complete, statement of the law governing’ the jurors in their deliberations. Even though it be assumed that it were better that the words complained of had been unsaid, still, after reading the entire record, we are convinced that they were utterly without effect upon the jury; and we are entirely satisfied that the jury faithfully followed the instructions of the court.

2. The plaintiff alleges thafi the goods, wares and merchandise were sold at an agreed price. The defendant insists that there is, no evidence to sustain the pleading and that the testimony showed, if it evidenced anything, an open and running account, standing “over a period of several months” with *511debits and credits and a balance due. A. J. Miller, tbe president of tbe plaintiff corporation, was asked to “state wbat tbe agreed value was of tbe material wbicb you sold him”; and be answered thus: “It was $145.04.” There was additional evidence in support of tbe complaint; and there was contradictory testimony. Tbe court defined tbe meaning of tbe words “express contract” and explained to the jury that “the contract plaintiff is relying upon in this case is an express contract.” Tbe court also told tbe jury that:

‘ ‘ The burden of proof is upon tbe plaintiff to prove by a preponderance of tbe evidence that” it sold materials to the defendant and “that there was an agreement between plaintiff and this defendant” and that “defendant was to pay‘the plaintiff tbe sum of $145.04 for such goods, wares and merchandise, or? you must find a verdict for tbe defendant and against the plaintiff.”

Again, tbe court said to tbe jury:

‘ ‘ Tbe plaintiff cannot recover unless it proves by a preponderance of tbe evidence that it entered into the particular contract alleged in tbe complaint and that it bad such contract with this particular defendant, George Davis, and at the stipulated and agreed price of $145.04.”

Tbe substance of tbe last quoted instruction was twice repeated to the jury. Tbe jurors were even told that—

“Unless you find that tbe contract was actually for tbe' sum of $145.04 and no other sum,' your verdict must be for tbe defendant.”

The instructions given by tbe court, if not more favorable to tbe defendant in some particulars than be could rightfully demand, were at least as favor*512able to bim as be could reasonably ask; and hence since there was substantial evidence supporting the contention of the plaintiff, the verdict of the jury must be accepted as a conclusive finding that there was a contract as alleged in the complaint.

3. With each load of material, the plaintiff’s yardman made out a memorandum in triplicate showing, among °other things, the kind and quantity of material delivered. One copy was “left by the teamster as a rule with the job”; and according to the testimony of A. J. Miller the “two other copies came into our office; one goes in as our permanent record and the other one we price up and mail out as a rule.” The plaintiff offered and the court received in evidence nine of these delivery slips, being “the ones that are permanent records in the office.” The defendant objected to the introduction of these memorandums on the ground that they were “incompetent, irrelevant and immaterial under the allegations of the complaint,” and because “the complaint designates a specific contract for a specific sum” and the memorandums offered in evidence “disclose a different sum.” The circuit judge explained his ruling by saying that the slips “are admitted in connection with what plaintiff alleges to be the contract, tending to show, if it does show, that there was a contract between these parties and that is all it is admitted for. ’ ’

Besides showing the date of delivery and the kind and quantity of material delivered most of the slips were signed by some person “on the job” who by his signature acknowledged receipt of the load delivered. The original slips do not appear in the record which is presented to us, but typewritten copies of the originals were made and are found in the transcript. One of these typewritten copies indicates that the *513original was signed by tbe defendant and the inference is that the defendant himself personally received the load of material represented by that delivery slip; and in this connection we may add that the plaintiff contends in its brief that the delivery slip just referred to shows that the defendant personally received the material. One of the slips purports to be signed by the defendant by an agent. Some of the memorandums purport to be signed by Dick Davis, the alleged contractor, by his agent; and one slip purports to be signed by Dick Davis. In the course of the argument about the admissibility of the memorandums the defendant expressly admitted that the “materials were delivered and went into his building”; and hence if it be assumed that the slips were what they purport to be and that the person signing them had authority so to do, it is plain that while some and possibly all the memorandums may have been subject to objections not presented at the trial, they were nevertheless not rendered inadmissible by the omnibus objection specified by the defendant.

4,5. The defendant contends that the judgment ought to be reversed because it recites the allowance of interest from March 1, 1916, instead of November 1, 1916. This contention of the defendant in effect admits that, if the plaintiff is entitled to recover at all, the facts warrant the allowance of interest from November 1, 1916; and we shall therefore assume that the plaintiff is entitled to interest from the latter date. It is quite manifest that by reason of a pure inadvertence the judgment entry was made to recite “March 1, 1916,” instead of November 1, 1916, as the date from which interest began to run. "We understand from the record that the attention of the circuit judge was not called to the mistake and that the *514objection was made for the first time after the appeal had been perfected. The mistake made in the judgment entry can be corrected here; and this modification does not entitle the defendant, as a matter of right, to his costs and disbursements on appeal. We think that in all the circumstances and on the authority of Stabler v. Melvin, 89 Or. 228, 232 (173 Pac. 896), and Olson v. Heisen, 90 Or. 176, 181 (175 Pac. 859), the plaintiff should have its costs and disbursements in both courts. With this slight modification the judgment is affirmed.

Affirmed.

Rehearing

Rehearing denied December 30, 1919.

Petition for Rehearing,

(185 Pac. 464.)

On petition for rehearing. Denied.

Mr. W. P. Myers, for the petition.

Mr. E. O. Stadter, contra.

HARRIS, J.

The defendant contends that the original opinion did not pass upon all the assignments of error, and for that reason he asks for a rehearing.

6. When the original opinion was written the points discussed in the briefs were carefully compared with the 'exceptions enumerated in the bill of exceptions and with the assignments of error specified in the printed abstract. When writing the original opinion it was our purpose to discuss all the alleged errors referred to in defendant’s briefs; and we thought that we had discussed all the points noted by the defendant in his briefs. We have again compared the bill of exceptions *515and assignments of error with the briefs and find that we were not mistaken in onr belief; for what we said in the original opinion necessarily passes upon every assignment of error which the defendant discussed in his opening and reply briefs. No point argued by the defendant in his briefs remains undecided. Some of the assignments of error are not mentioned at all in the briefs submitted by the defendant. Assignments of error, upon which no argument is presented in the brief of an appellant, are deemed to have been abandoned and waived: Donohoe v.. Portland Ry. Co., 56 Or. 58, 61 (107 Pac. 964). The petition for a rehearing is denied. Affirmed. Rehearing Denied.