Newman v. Multnomah Fuel Co., 183 P. 1

Newman v. Multnomah Fuel Co.

183 P. 1 | Or. | 1919

JOHN'S, J.

In the absence of any requested instructions or exceptions to those which were given, a motion for a directed verdict or to set aside the judgment, the overruling of the motion for a nonsuit is the only question before this court. While that motion does not point out or specify the grounds upon which it should be sustained, it appears that it was argued before the court and after argument the court made this ruling:

“I don’t see how you can get away from the law, Mr. Olson. It seems to me this amounts to a sale of personal property to the value of more than fifty dollars, and if so, the agreement should be in writing.”

After further argument the court ruled:

“Well, this evidence went in without objection. On cross-examination you inquired into the cost of cutting the cordwood, and so forth. I think I will change my ruling on that. The motion for a judgment of nonsuit is denied and an exception is allowed.”

It is apparent from this that in any event the question of the statute of frauds was argued to and considered by the court.

Assuming that the remaining questions now urged by the defendant were embraced within the motion for a nonsuit and argued before the trial court and are *252now legally before this court, we think the judgment should be affirmed. ■

1. It appears that the plaintiff did not have any cordwood and was not engaged in the wood business at the time of the alleged parol agreement; that the contracted wood was then in the form of standing timber, only a portion of which was owned by the plaintiff, and that he had contracted with the owners of timber for the remainder of the 2,500 cords. It is also shown that under the terms of the alleged contract the wood vwas to be delivered f. 0; b. Portland at the defendant’s place of business. To comply with his contract it was necessary for the plaintiff to fell the timber, cut it into cordwood and haul it to the railroad for shipment, to purchase tools, to employ men for the cutting and to procure men, wagons and teams for the hauling: This was done, and the plaintiff was actually engaged in complying with his alleged oral contract. The evidence shows that the plaintiff cut the' wood expressly for the defendant and not for the public market, and that in fact his contract was one to make cordwood out of standing timber and to deliver it by the labor of man and team. The jury found for the plaintiff, and for such reason we must assume that there was an oral contract between the plaintiff and the defendant. The alleged written contract was for 500 cords of wood, but it is undisputed that the plaintiff delivered and the defendant accepted 650 cords of wood. It must follow that at least 150 cords of wood were delivered and accepted under the oral contract. Section 808, subdivision 5, L. O. L., known as the statute of frauds, specifying what contracts shall be void says:

“An agreement for the sale of personal property at a price not less than $50, unless the buyer accept and receive some part of such personal property. * * ”

*253By the undisputed facts after verdict the defendant did accept and receive at least 150 cords of wood on the oral contract and it did “accept and receive some part of such personal property,” and for such reason the defendant comes within the exception.

2. The defendant also contends that there was no legal testimony on the measure of damages. The plaintiff testified as to the cost of the stumpage and of the cutting and hauling, and the railroad charges upon each cord of wood; that he was to receive $3.50 per cord for Number 1, and $3 per cord for Number 2, or doty wood, and that as to the latter there was no stumpage charge. From this evidence, the amount of plaintiff’s damage was a question of mathematics only.

While the defendant contends that the only contract which it ever had with the plaintiff was in writing, and was for only 500 cords of wood, the plaintiff alleges that there was a parol agreement for the sale and purchase of 2,500 cords, to be delivered on or before March 1, 1916, and that such parol agreement was separate and distinct from and was not embraced within the terms of the written, contract; in other words, that there were two separate and distinct contracts, one in writing for 500 cords of wood, from the proceeds of which the plaintiff was to pay $500 as the purchase price of the team; and the other in parol, for 2,500 cords. That was a question of fact and the jury found for the plaintiff. While reasonable men might and would differ as to the verdict which should be rendered, the fact remains that there is sufficient evidence to sustain the verdict returned by the jury. The judgment is affirmed. Aeeirmed.