Purdy v. Van Keuren

119 P. 149 | Or. | 1911

Mr. Justice McBride

delivered the opinion of the court.

1, 2. The validity of defendant’s objections to the ruling of the court excluding certain portions of his evidence hinges upon a single proposition. Could he, after pleading an accord and satisfaction, as is done here, introduce evidence tending to show that plaintiff’s services were rendered gratutiously ? It will be seen that defendant does not positively deny any specific allegation of the complaint. He denies only such as he deems material, and these only in so far as they are not referred to in the answer. In other words, he says:

“The contract- was not as plaintiff states it, but as I state it.”

Conceding that defendant had the right to plead the general issue, and also an accord and satisfaction of the claim, he could only do this by an absolute denial of the contract, coupled with a plea of accord and satisfaction of the plaintiff’s demand. The pleading in the case at bar falls short of this. The defendant could not in any event, under a general denial, introduce evidence that plaintiff’s services were rendered gratuitously. The law presumes that services performed by one at the request of another are performed for hire, and implies a promise to pay for them. Lawson, Contracts, Section 43. To overcome this presumption, and to fairly appraise plaintiff of the defense he intended to interpose, defendant should have pleaded specially that the services were performed gratuitously.

3. The brief of defendant contains a discussion of the evidence submitted, and it must be confessed that the evidence is exceedingly contradictory and unsatisfactory; but there was evidence, sufficient to submit to a jury, which sustained plaintiff’s theory, and the jury having found in his favor we are prohibited by Section 3, Article VII, of the Constitution, as amended November 8, 1910 (Laws 1911, p. 7), from disturbing their verdict.

The judgment of the lower court is affirmed.

Affirmed.