PACIFIC GENERAL CONTRACTORS, INC. v. SLATE CONSTRUCTION COMPANY
Supreme Court of Oregon
Argued December 13, 1951, affirmed December 3, 1952
251 P. 2d 454
608
Bruce Spaulding, of Portland, argued the cause and filed briefs for appellant.
Before BRAND, Chief Justice, and HAY, LUSK, LATOURETTE and TOOZE, Justices.
LUSK, J.
A motion to dismiss the appeal was heretofore filed by the plaintiff and denied without opinion, with leave to renew it upon the argument. The motion having been renewed, we have reconsidered it.
The action is one for money had and received in which the plaintiff, Pacific General Contractors, Inc. (hereinafter called Pacific) sued the defendant, Slate Construction Company for $43,844.00 and recovered a judgment for $38,844.00. There was but one cause of action pleaded, but the proof disclosed that numerous items entered into the amount for which judgment was granted. Among these was an item of $7,800.00, represented by a check for that amount drawn by plaintiff in favor of defendant and the proceeds of which the defendant received. Defendant claimed in its testimony that the check was given as consideration for the transfer to plaintiff of defendant‘s equity in two pieces of road construction equipment known as DW-10 caterpillar carryalls. Plaintiff, on the other hand, contended that it had never received any consideration for the check. Apparently (although there are no specific findings on the issue) the court held with the plaintiff and included the sum of $7,800.00 in question in the amount of the judgment awarded to the plaintiff. The implication of that ruling, the plaintiff says, is that the defendant did not transfer its interest in the equipment to plaintiff.
In the case of Glaser et al. v. Slate Construction Company, this day decided, the defendant, Slate Construction Company, filed a counter-claim to recover from the plaintiffs therein the reasonable rental value of various pieces of highway construction equipment, including the identical DW-10 caterpillar carryalls in-
The general rule is that a party cannot claim the benefit of a judgment and at the same time appeal from it. The right to proceed on the judgment and enjoy its fruits and the right of appeal are not concurrent. On the contrary, they are totally inconsistent. An election to take one of these courses is, therefore, a renunciation of the other. Cottrell v. Prier, 191 Or 571, 575, 231 P2d 788; Barnes v. State Industrial Accident Commission, 112 Or 41, 43, 228 P 684; Graves v. State Industrial Accident Commission, 112 Or 143, 148, 223 P 248; Portland Construction Co. v. O‘Neil, 24 Or 54, 32 P 764; Moore v. Floyd, 4 Or 260. The same rule has been held applicable to a party who acquiesces in a part of a judgment while attempting to appeal from the remainder. West v. Broadwell, 124 Or 652, 265
Of course, in this case, the judgment being against Slate Construction Company, it can scarcely be said that it accepted the benefits of the judgment, or any part of it, as in cases where one who is awarded a judgment for less than he demands, accepts the lesser sum and still attempts to appeal. See Bush v. Mitchell, supra, and cases cited in 169 ALR 989. If defendant has waived its right to appeal it is because it has attempted to take advantage of the judgment affirmatively in another suit and thereby recognized its validity. 2 Am Jur 974, Appeal and Error, § 210. For other illustrations of waiver of the right of appeal by
We do not have here a judgment with several provisions. Whether the rule applicable to such a judgment can ever be invoked, where the evidence discloses that the conduct asserted to be a waiver of the right of appeal relates to a part only of a general judgment, based upon a single cause of action, is a question which we find it unnecessary to decide. For a discussion of this point see 169 ALR 1029.
The decisive inquiry here is whether the defendants’ offer in evidence in the Glaser case of the judgment in this case could in any view be deemed such an acquiescence in or recognition of the validity of such judgment as to constitute a waiver of the right to appeal therefrom. In our opinion it could not for the reason that the judgment was not admissible in evidence in the Glaser case. The plaintiffs in that case were not parties, nor in privity with either of the parties, to the case in which that judgment was rendered. As to them the judgment was res inter alios acta and could not properly be received “for the purpose of proving the facts recited in the judgment.” Vanderpool v. Burkitt, 113 Or 656, 666, 234 P 289. See, also, 30 Am Jur 951, Judgments, § 220. In these circumstances the correct rule, we think, is stated in 169 ALR 1005 as follows:
“The principle of waiver which prevents a party from prosecuting appellate proceedings to reverse a judgment or decree after he has accepted or pursued an advantage under it, is held by many courts to apply not only to cases where the advantage is taken directly under the favorable provisions of the adjudication, but to cases where it is taken collat-
erally and extraneously. To make it applicable, clearly something more must be shown that some expression of satisfaction, or of intention to abide by the decree, made either in court or out of court, if the legal situation is not thereby changed. The appellant must have voluntarily taken some such legal advantage, or put the judgment to some such legal use, as itself to operate as a binding waiver.” (Italics supplied.)
No change in the legal situation was, or could have been, brought about by offering or receiving in evidence in the Glaser case the judgment in the case at bar, and therefore no waiver of the right to appeal from that judgment resulted.
The motion to dismiss the appeal is therefore denied.
ON THE MERITS
LUSK, J.
This is an appeal from a judgment in favor of the plaintiff, Pacific General Contractors, Inc., a corporation (hereinafter called Pacific), and against the defendant, Slate Construction Company, a corporation, in the sum of $38,844.00.
Two of the assignments of error in defendant‘s brief are based upon the circuit court‘s rulings with respect to an equitable defense interposed in the answer. Questions of procedure thereby raised will first be disposed of.
The complaint states a cause of action at law for the recovery of moneys of the plaintiff had and received by the defendant for the use and benefit of plaintiff during the months of May, June, July and August, 1948, in the aggregate amount of $43,844.00.
To this complaint the defendant filed an answer consisting of a general denial and affirmative matter which is claimed to be an equitable defense under
Plaintiff filed a demurrer to the affirmative answer on the ground that it did not state facts sufficient to constitute a defense in equity or otherwise to the cause of action stated in the complaint. No order on the demurrer was made or entered. When the cause came on to be tried the equitable issues were first heard in accordance with a stipulation of counsel entered into in open court. After completion of the evidence on the
The court then proceeded with the trial of the issues of law, and, upon the conclusion thereof, entered findings of fact, conclusions of law, and a judgment. The findings recite that the defendant had failed to establish its equitable defense and the equitable matter “had been withdrawn by the court“; that the defendant, by permission of the court, had filed its amended answer; and the case “was allowed to proceed at law upon the issues thus formed.” There is a further recital that counsel for plaintiff and defendant had “theretofore stipulated in open court to the effect that in the event the court should hold against the equitable defense interposed in defendant‘s answer, then the court should proceed to hear and try the law issues without a jury.” This is followed by a general finding that the defendant is indebted to the plaintiff for money had and received in the sum of $38,844.00.
The defendant has brought to this court a bill of
The defendant contends, first, that there is no evidence whatever to support the judgment. It is virtually conceded that there is evidence that defendant received from the plaintiff a sum in excess of $36,770.00. Defendant urges, however, that this money was the plaintiffs’ contribution to a joint adventure between the parties for the performance of a road construction contract awarded to the defendant, which is referred to in the testimony as the North Umpqua job. Since the contract had not been completed at the time this action was brought and the joint adventure was still in operation, the argument is that the money sued for was not due at the time the action was brought. Counsel for defendant might also well have argued, on the assumption of the existence of such joint adventure, that, until there had been a settlement of an account and a balance struck, no action at law by one partner against another would lie. McKee v. Capitol Dairies, 164 Or 1, 5, 99 P2d 1013. See, also, 40 Am Jur 452, Partnership, § 465. We think there can be no doubt that evidence supporting this defense was admissible under the general denial. This is an action of assumpsit in which, under the plea of non assumpsit, the defendant is entitled to show almost every defense which tends to prove that no debt was due at the time when the action was commenced. Vogler v. Webb, 181 Or 377, 382, 182 P2d 361; 7 CJS 131, Assumpsit, § 26. And, in view of the stipulations of the parties to which we have referred and the course which the trial took, evidence received during the trial of the equitable issue in support of the claim of a joint adventure is to be considered as evidence in the action at law. Much of the former is pertinent to the latter, but it is clear that
“Now, as before the amendment of 1917, a party to secure a review of the decree, must appeal from it, and to secure a review of the judgment must likewise appeal from it; for an appeal from one will not operate as an appeal from the other, and an appeal from the judgment will not permit a review of the decree.”
Of course, there being no decree, there was nothing, so far as concerns the equitable defense, from which the defendant could have appealed. The defendant, however, was not remediless. That it was the duty of the court to enter a decree in accordance with its decision of the equitable issues, is the manifest implication of the Gellert case and of Friedenthal v. Thompson, 146 Or 640, 646, 647, 31 P2d 643, where it is said:
“It would appear that, where the defendant asserts an equitable defense and the parties stipulate that the court may hear the whole matter without the intervention of a jury, the court may and should dispose of the entire case in the equitable proceeding: Crossen v. Campbell, supra. However, where the court finds against the defendant
on the equitable defense, a decree may be entered accordingly and the case be allowed to proceed at law.”
Performance of the court‘s duty to enter a decree dismissing the equitable defense could have been compelled by mandamus. Nothing in the stipulation, properly interpreted, had the effect of waiving defendant‘s right to have a decree entered from which it might have appealed. Instead, however, of invoking the remedy of mandamus, the defendant amended its answer by eliminating the equitable defense and making some changes in the denials. The defendant contends that this course was obligatory under the following provision of
“* * * If, after determining the equities, as interposed by answer or reply, the case is allowed to proceed at law, the pleadings containing the equitable matter shall be considered withdrawn from the case, and the court shall allow such pleadings in the law action as are now provided for in actions of law.”
Defendant cites a dictum from State v. Fitzgerald, 154 Or 182, 196, 58 P2d 508, which appears to support its position. What was said upon the subject in that case was unnecessary to the decision. It is equally unnecessary to express an opinion upon it here. We are only concerned with the question of the scope of review. Since this is an appeal from a judgment in a law action and not from a decree in equity, the proceeding is governed by the rules applicable to such an appeal. Counsel for defendant has virtually recognized that this is the case by bringing to this court a bill of exceptions, a procedure entirely foreign to appeals from decrees in equity. Hence, we cannot concern ourselves with the assignments of error directed to the refusal of the court to enter a decree dismissing the equitable
The remaining assignments of error are based upon objections to the findings filed by the defendant and overruled by the court. These raise questions of the sufficiency of the evidence. Under the familiar and long established rule, the sole inquiry is whether there is any substantial evidence to support the findings. If there is such evidence the findings of the trial court are conclusive on appeal, notwithstanding the presence of evidence to the contrary. In re Wilkerson Estate, 187 Or 635, 639, 213 P2d 209; Conger v. Eugene Plywood Co., 184 Or 649, 654, 200 P2d 936.
The difficulty with defendants’ position is, that while there is evidence to sustain a finding that the money in question—or most of it—went into a joint adventure, there is also evidence to the contrary. The defendant, Slate Construction Company, in 1948 had for some 25 years been engaged in the business of highway construction. Its president was M. C. Slate. Mr. Slate talked to F. T. Glaser, William Glaser, D. E. Turnidge and P. L. Turnidge about the money to be made in the highway construction business, and as a result these men became interested, and with Slate and others organized in May, 1948, Pacific General Contractors, Inc., a corporation empowered, among other things, to engage in the business of constructing highways. The authorized capital stock was 40,000 common shares of the par value of $10.00 each and 1,000 preferred shares of the par value of $100.00 each. Subscribers to the stock included Slate, George Fritz and Webber Doughton, both directors of Slate Construction Company, and the two Glasers and two Turnidges. At the first meeting of stockholders held in Albany May 12, 1948, these men were elected direc-
The controversy turns principally on the question of what was the intention of the parties as to the part which Pacific should play in relation to the North Umpqua job, the contract for which was awarded to Slate Construction Company. The Glasers and Turnidges paid into the treasury of Pacific over $30,000.00 on their stock subscriptions; Doughton and Slate paid in $10.00 on theirs. There is evidence that Doughton, as secretary of Pacific, certified to the correctness of a resolution passed by the board of directors of Pacific on May 25, 1948, which recited that “this corporation is materially interested, through joint enterprise, in the transaction in which Slate Construction Company has applied to the General Casualty Company of America for bonds or undertakings in the amount of $ Various“, and authorized Doughton as secretary-treasurer of Pacific to execute agreements of indemnity required by the General Casualty Company of America as a prerequisite to the execution by it of such bonds or undertakings for Slate Construction Company. There is evidence, however, that no such resolution was ever actually passed. There is no dispute about the fact that the board of directors of Pacific authorized the use by Slate Construction Company of $30,000.00 of its capital and that a sum in excess of that amount was drawn out of Pacific‘s bank account on checks signed by Slate as president and Doughton as secretary of Pacific, and made payable in many instances to Slate Construction Company. The larger part of these moneys went to meet expenses, such as payroll, incurred on the North Umpqua job, although
Where the issue is partnership vel non and the evidence is conflicting the question becomes one of fact. 40 Am Jur 190, Partnership, § 87; annotation 137 ALR 12. We have pointed out some of the major conflicts in the evidence. These, without more, are sufficient to demonstrate the want of merit in the assignment of error directed to the proposition that there is no evidence to sustain the judgment.
The other assignment of error with respect to the sufficiency of the evidence is as follows: “The court erred in finding for plaintiff in the amount of $38,844.00.” It is argued in support of this assignment that the greatest judgment which the evidence will sustain is $36,770.00, that being the amount of the total paid-in capital of Pacific. This argument overlooks evidence with respect to a shovel purchased by Slate Construc-
The judgment is affirmed.