95 P. 497 | Or. | 1908
Lead Opinion
Decided May 12, 1908.
On Motion to Dismiss.
[95 Pac. 497.]
This is a motion to dismiss an appeal because the transcript was not filed within the time required by law. The notice of appeal and undertaking were served and filed on January 4, 1903. Respondent excepted to the sufficiency of the surety, and appellant thereupon gave notice that it would produce him before the clerk of the court for justification on January 11th. The surety appeared at the time stated, and was examined under oath touching his sufficiency; his examination being taken in shorthand. The respondent requested that his testimony be reduced to writing and signed by him, and the shorthand notes were subsequently extended, and on January 25th the surety appeared before the clerk, signed his testimony, and on that date the clerk found the surety sufficient, annexed the examination to the undertaking, and indorsed his allowance thereon. The transcript was filed in this court on the 22d of February, or within 30 days thereafter. The statute (B. & C. Comp. 1901, § 549) provides that, from the expiration of the time .allowed to except to the surety in an undertaking on an appeal, or from the justification thereof, if excepted to, the appeal shall be deemed perfected, and within 30 days thereafter the appellant shall file a transcript or abstract with the clerk of this court (section 553). When the sureties on an undertaking for an appeal are excepted to,
The transcript was therefore filed within time, and the motion to dismiss is overruled. Motion Denied.
Opinion on the Merits
Argued February 25, decided March 8; rehearing denied April 12, 1910.
On the Merits.
[107 Pac. 470; 108 Pac. 121.]
Statement by
This action was instituted to recover $311.50 for goods alleged to have been sold to defendant. The .alleged price of the property sold was fixed by plaintiff at $517. The complaint then alleged an account stated between defendant and plaintiff whereby it was agreed that a balance of $105.50 was due to defendant from plaintiff, and that the amount plus the sum of $100 which had been paid to plaintiff by defendant, but deducted from the $517,' gave $311.50 as the amount plaintiff asked judgment for. Defendant denied the sale of the goods to it, admits their receipt, and claims they were not worth to exceed $400 and were taken for examination .and not a complete sale,
delivered the opinion of the court.
“You are the exclusive judges of the facts in this case. I will instruct you that if you find from the testimony in this case that these goods were delivered by the defendant to the plaintiff, remained in his store during the time alleged here; that, when the defendant undertook to take them away from the plaintiff, the plaintiff requested to have a settlement, and that the settlement was made as claimed here by the plaintiff, and if you are satisfied of this by the testimony and the circumstances of this case by a preponderance of the testimony — I mean by preponderance, the weight of testimony — I instruct you that that would be a termination of that contract for the delivery of those goods and the defendant would not be*130 entitled to recover on any of these causes of action set up here, neither for these goods, and you will pay no attention to the proposition whatever. That is what is termed in the law an ‘account stated,’ and the whole mass of testimony with reference to those goods and the claim growing out of that would be at an end. The burden of proof in this case is upon the plaintiff to establish by a fair preponderance of the testimony that these goods that he claims in his complaint, $517, were sold and delivered, and in considering that matter you will consider, not only the evidence of the witnesses here, but the circumstances surrounding them, and the circumstances of the manner of the delivery of the goods, and the probability of it, and arrive at the facts the same as you would at any other fact in the case; but the burden is upon the plaintiff to establish the fact by a fair preponderance of the evidence, and, of course, if you find the goods were so sold as claimed by the plaintiff, it would be your duty to return a verdict, or find that the amount due therefor from the defendant to the plaintiff was $517, as alleged.”
It is contended that this was erroneous, in that it assured the value of the goods to be the sum of $517, whereas such value was denied, making it, therefore, a clear question of fact for the jury. The remark was no doubt an inadvertence, .and is the only substantial defect in an otherwise impartial instruction. Counsel for plaintiff contends that the statement by the court to the jury that they are the exclusive judges of the facts in this case cured this error, but, much as we would like to adopt that view and end this vexatious case without further litigation, we find ourselves unable to .accede to it. When the court said, “Of course, if you find the goods were so sold as claimed by the plaintiff, it would be your duty to return a verdict or find that the amount due therefor from the defendant to the plaintiff was $517 as alleged,” they would naturally suppose by reason of the state of the pleadings or some circumstances of that sort that the value of the goods was so fixed as to be beyond legal question. There were counterclaims and offsets pleaded, and
For the reasons above stated, the judgment is reversed, and a new trial ordered. Reversed.
Rehearing
Former opinion overruled, April 12, 1910.
On Rehearing.
[108 Pao. 121]
delivered the opinion of the court.
“Of course, if you find the goods were so sold as claimed by the plaintiff, it would be your duty to return a verdict or find that the amount due therefor from the defendant to the plaintiff was $517, as alleged.”
We held this instruction to be erroneous, in that it assumed the value of the goods to be fixed as a matter of law, when, in fact, such value was one of the disputed questions in the case. Appellant’s printed abstract shows that this instruction was excepted to; but, upon comparing the abstract with the transcript on file, we find this to be an error, and that no exception was saved to the particular instruction held by us to be erroneous.
Our former holding is overruled, therefore, and the judgment of the court below is affirmed.
Former Opinion Overruled : Affirmed.