165 P. 369 | Or. | 1917
delivered the opinion of the court.
“No exception need be taken or allowed to any decision upon a matter of law, when the same is entered in the journal, or made wholly, upon matters in writing and on file in the court”: Section 172, L. O. L.
The defendant urges that the written bill of exceptions fulfills this rule of procedure so that the decision is indeed made upon matters in writing and on file in the court. We cannot concur in this view because the ruling was not made wholly upon written data then before the Circuit Court. When it was made
“I further instructed you that there is no evidence in this case upon the question of the market value of this stock, or as to whether or not it had a market value and that if you find for the plaintiff in this case, you can only find for nominal damages, — that is, one cent, or one dollar, or some nominal sum.”
It was no error to refuse this instruction because it excluded from the consideration" of the jury the actual reasonable value of the stock although it was not known in the market and hence could not have what is called market value.
There is assigned as error also the instruction of the court to the purport that if the shares were pledged as a security and the plaintiff had tendered or offered to pay the debt, being at the time able, ready and willing to make the payment, the lien of the defendant would be discharged and his refusal to return the pledge would be a conversion thereof on account of which the jury should find for the plaintiff for the reasonable value of the property not exceeding the amount stated in the complaint.
“The defendants cannot invoke this rule, because they have not pleaded the amount due on the mortgage in mitigation of damages.”
The remaining error assigned by the defendant is predicated upon this direction given to the jury at the trial:
“I further instruct you that if you find for the plaintiff, you should give your verdict for damages in a sum*566 equal to the reasonable market value of said shares of stock at the time of conversion, if any, or within a reasonable time thereafter, and if you find that the said shares of stock have no market value, then in ascertaining their reasonable value, you will consider the reasonable market value of the assets of said corporation, if any, in arriving at the reasonable value of said stock, if any, and your verdict should be for such amount as you may find said stock to be reasonably worth. ’ ’
Beversed and Bemanded. Beheading Denied.