5 Or. 509 | Or. | 1875
By the Court,
The first objection urged by counsel for appellant is, that the Circuit Court erred in allowing plaintiffs to amend their complaint by setting out the special contract entered into by the parties, and charging upon defendant a breach thereof, and by setting up a claim to recover for the labor performed by plaintiffs at the rate of compensation stipulated for in said contract; whereas the original complaint, in the County Court, showed a cause of action, based upon implied assumpsit, for the recovery of the reasonable value of the labor performed, and made no reference to the express contract set up and relied upon in the amended complaint.
The original complaint, filed in the County Court, ignored the existence of any special or express contract, and only tendered an issue so far as the price for the labor performed by plaintiffs was concerned, upon the quantum meruit, and, upon an issue joined on that allegation by a simple denial thereof, evidence of a fixed contract price would be inadmissible. After a trial in such case in the court of original jurisdiction, we do not think that the appellate court would be warranted in allowing an amendment which would change the issue from that of implied assumpsit to that of express contract.
The object of the provision of § 533 of the Civil Code, that the trial in the appellate court shall be upon substantially the issues tried in the court below, is to enable the parties to come into the appellate court with their evidence for trial, and to protect the party, who comes into court with a good pleading, from unnecessary delay and expense in his litigation.
But the defendant in this case comes into the County Court, and by his answer admits that the labor was performed, as charged by plaintiff; but, in a plea by way of avoidance, alleges that it was rendered under a special con
By the reply of plaintiffs to this new matter in the answer, an issue was formed in the County Court, between the answer and reply, which is substantially the same as that formed in the Circuit Court between the amended complaint and the answer thereto. "While it is doubtless true that the portion of plaintiffs’ reply in the County Court which charges upon defendant a breach of the special contract referred to was liable to objection, because inconsistent with the complaint, which makes no mention of a special contract, yet we think, in the absence of any objection on that ground, that the reply ought to be regarded as presenting an issue upon that subject. We think that the court below did not err in allowing the amendment to the complaint, inasmuch as it only served to correct the form of the pleadings by presenting the mutual altercations of the parties in their correct and natural order.
The second objection to the proceedings of the court below is to the effect that the court erred in sustaining plaintiffs’ motion to strike out that part of defendant’s answer to the amended complaint which alleges substantially, as a matter of defense, that defendant had never complied with the law of this State requiring it, as a foreign corporation proposing to transact business here, to file in the clerk’s office of the county where such business was to be carried on, a power of attorney, designating a resident citizen of this State with authority to accept service of process, and on whom process might .be served in all legal proceedings against such corporation.
It is claimed by counsel for appellant that in the absence
The third objection, that the court erred in admitting evidence of the levy on the blacksmith shop and tools of defendant, by Harvey Howard, without proof of the attachment directing the same, we think is not well taken, for the reason that we find nothing in the bill of exceptions showing that the error complained of was committed. The use of the blacksmith shop and necessary tools to prosecute the work of opening the tunnel were to be furnished plaintiffs by defendant. It appears from the bill of exceptions in this case that plaintiffs attempted on the trial to show that, in an action by attachment against the defendant, the tools and blacksmith shop, which defendant had furnished plaintiffs, under the terms of the contract, to use while so at work, were taken from them, and that they were deprived of the means of prosecuting such work further, and for that reason they abandoned the same, and thereafter treated the contract as rescinded. On this subject it appears that a ques
This brings us to the consideration of the objections made by appellant to certain instructions of the court, and the exceptions taken to the refusal of the court to give certain special instructions asked for by counsel for appellant.
But before proceeding to refer to the instructions given and refused, to which exceptions were taken by appellant, let us see what issues of fact were by the pleadings presented to the jury for trial.
The complaint, as amended in the Circuit Court, shows an action for damages upon a special or express contract for labor to be performed by plaintiffs, and charges a breach of the contract on the part of the defendant, by reason of which the plaintiffs, after" having performed a part of the work contracted for, were prevented from completing the same, and on account of which they claim a rescission of the contract and the right to recover from the defendant the full
Tbe defendant, admitting the terms of the contract, denies the breach thereof on its part, and charges a breach of the same by plaintiffs.
The plaintiffs’ right to recover the amount claimed by them in this action only depended upon the finding by the jury in their favor on the issues as to the violation of the contract by defendant. We think that the contract price of twenty dollars per yard in length of the tunnel completed by plaintiffs, is the just measure of damages sustained by them on account of a breach of the contract by defendant. The measure of damages under the pleadings in this case becomes a mere question of law, so far as the plaintiffs’ claim is concerned, if the defendant committed a breach of the contract as charged.
The bill of exceptions shows the following instructions asked for by counsel for appellant, and refused by the court:
1. “ The plaintiffs can only recover in this action what the evidence shows to be due them on the contract set up in the pleadings.”
This instruction, we think, was not sufficiently qualified, and was calculated to mislead the jury, for the reason that, by the literal terms of the contract referred, one half, or ten dollars per yard for the work done by plaintiffs, would not become due until after the completion of the tunnel and the shipment of a cargo of coal from the mine had been made. We think it is fairly to be inferred from the terms of the contract set out in the complaint that defendant's coal mine had not been opened so that coal could be procured for shipment, and that it was the understanding of the parties that the cargo of coal referred to in the contract was not to be shipped until after the completion of the tunnel which plaintiffs agreed to construct. Although, by the literal terms of the contract, without reference to its violation by defendant, plaintiffs had already been paid all that was due them thereon, yet by operation of law the deferred payments became due as soon as defendant committed a breach of the same so as to prevent plaintiffs from complet
It was urged by counsel for appellant that it would not be just to allow plaintiffs to recover the same price for the first one hundred yards of the tunnel as for the second and third one hundred yards, for the reason that the construction of the first one hundred yards would be less difficult and expensive than the second and third. It is an answer to this that there was no issue made by the pleadings as to the relative cost of the different parts of the tunnel; the contract makes no distinction in this respect, and the court we think could not make any.
The second and third instructions refused by the court are as follows:
2. “By the terms of that contract, upon the completion of the first one hundred feet of the tunnel, but one half of •the price became due, to wit, three hundred and thirty-three dollars and thirty-three cents.”
3. “The remainder of the price for said one hundred feet did not and cannot become due until the first cargo of coal can be shipped.”
In view of the conclusion already arrived at as to the just measure of damages in a case like this, the correctness of the court in refusing to give the last two instructions we think is sufficiently apparent. Other instructions, embraced in the bill of exceptions, requested to be given by counsel for appellant and refused by the court, we do not deem it necessary to take time to here set forth or refer to further than to say that we think they come clearly within the purview of the rules by which those already enumerated were properly refused.
The following instruction was given by the court, to which counsel for appellant excepted, and which is assigned as error, to wit:
‘ ‘ There has been something said by counsel in this argument about the form of the action in this case. Under our statute, the distinction heretofore existing between forms of
The concluding portion of this instruction we think was technically incorrect, for the reason that this is not an action by plaintiffs to recover the value of their services rendered, as upon a quantum meruit, but is an action to recover the price agreed to be paid by the terms of the contract between the parties. It does not appear from the bill of exceptions that there was any testimony given at the trial as to the reasonable value of the services of plaintiffs, and it was not necessary, under the pleadings, that any should have been given to entitle them to recover, if the jury found that the contract was broken by the defendant. The court might properly have said to the jury, “ If you find from the evidence that the terms of the contract, set up in the complaint, were violated by defendant on its part, so as to prevent plaintiffs from going on and completing the tunnel in question, then you will find for the plaintiffs in the sum of four hundred and forty-six dollars and sixty-six cents, as claimed by them.”
The jury must have found that the contract was broken by defendant in order to have found for the plaintiffs in any sum; and as they only returned a verdict for four hundred and forty-six dollars and sixty-six cents, the error complained of could not have operated to the prejudice of any substantial right of appellant.
The judgment of the court below should be affirmed. ■