107 P. 984 | Or. | 1910
Opinion by
This is a suit for an accounting and to have a deed to real property declared a mortgage. From a decree permitting the plaintiff to redeem the land within 60 days by paying $6,000, but in default thereof to extinguish all-his right to the premises, he appeals. The admitted facts are that on September 26, 1891, the plaintiff, being the owner in fee of a homestead and a timber claim in Clat
The evidence shows that prior to September 26, 1891, the plaintiff, engaged in logging, became indebted to several persons who were urgently demanding their moiiey, whereupon the defendant, then a merchant at Astoria and one of plaintiff’s creditors, paid off such obligations, but did not discharge his own, and, for some time after receiving Raski’s deed, he operated a camp on the premises and received logs and cordwood taken therefrom. The plaintiff’s testimony supports the averments of the complaint, which are, in effect: That the land was conveyed by him pursuant to an agreement that the business should be continued by the defendant, who was to cut sawlogs and cordwood for his own use and benefit, retaining the profits and defraying all the expenses; that he would pay certain sums, as stumpage, for logs, etc., taken from the premises; that he would give the plaintiff certain wages for his services, pay him for boarding the laborers employed, and credit him with such sums on account of the obligations which the defendant so paid in discharging the debt which he held against plaintiff aggregating $2,800; and that the defendant received on plaintiff’s account property and services of the following values: To the timber claim, $3,000; to logging tools and implements, $300; to stumpage on logs and cordwood, $8,167.10; to board of defendant’s labor
The defendant’s testimony corroborates the allegations of the answer which, after denying the averments of the complaint, except that plaintiff had been the owner of the land specified, but which he conveyed to the defendant absolutely, states that on September 26, 1891, the plaintiff’s indebtedness was $8,526.04, and that he now owes the defendant $10,243.08, which sum does not include the agreed purchase price of the land. As a witness in his own behalf the defendant admits that the business of cutting logs, cordwood, etc., was conducted in his name, but testifies that the supervision resulted from the request of the plaintiff, for whose use and benefit the dealing was managed; that charges were made for all sums of money advanced to the plaintiff and for all goods, wares, and merchandise sold and delivered at his request; that the witness paid the laborers, deducting the amount of their board, which was credited to the plaintiff; and that for all logs, cordwood and other material taken from the land, due credit was given to the plaintiff.
The significant fact which is necessarily decisive of the important issue involved herein, is whether the defendant conducted the business for himself, or operated it for the plaintiff, for, if it was managed for the latter, the charges for stumpage, board furnished, and labor performed, as set forth in the complaint, must be disregarded. We do not think it essential to quote from or comment upon the testimony, a careful examination of which convinces us that the business of cutting logs and cordwood was conducted by the defendant for the use and benefit of the plaintiff. The determination thus reached leaves for consideration the amount of money, if any, due from one party to the other.
It appears that the statement of what purports to be the sums of money with which the plaintiff is charged and the credits to which he is entitled, was prepared by Arthur Liebman, an accountant, who testified that in making the report he added items which did not appear on the defendant’s books, but for which receipts were found, and that he also omitted items for which no acknowledgments of payment could be discovered, saying that Wise told him, “To go ahead and use my own judgment in making the statement.” The bill of items of debit and credit is designated under two captions, as Raski’s “Personal Account,” and his “Camp and Wood Account,” and was over objection and exception received in evidence as defendant’s Exhibit U. The personal account commences with what purports to be a copy of a charge made August 27, 1884, and closes February 1, 1895, with a statement of $1,066.05, as the remainder due from the plaintiff to the defendant, and the camp and wood account begins with what seems to be a transcript of a charge made March 20, 1891, and terminates September 26, 1895, with a statement of the balance due from the plaintiff to the defendant of $4,141.79, although items noted as “Omitted to be Charged in Ledger” and under vario.us dates from the beginning of the account to July 17, 1893, are afterwards entered, thus bringing
Considering the admissibility of the volumes mentioned, Ben Wise, the defendant’s son, as his witness, identified
“When an entry is repeated, in the regular course of business, one being copied from another, at or near the time of the transaction, all the entries are equally regarded as originals.” Section 780, B. & C. Comp.
The defendant’s daybook, containing a record of the plaintiff’s account, and the ledgers which include a transcript therefrom, were admissible in evidence as original entries to substantiate a detailed statement of the mutual demands of the parties as to the respective debts and credits.’ The entries made in the ledger, however, from Liebman’s statement of the separate accounts are inadmissible, and the general objection made by plaintiff’s counsel, on the ground of incompetency, is sufficient to exclude them. Ladd & Bush v. Sears, 9 Or. 244, 247.
Ben Wise, referring to the defendant’s method of keeping the books, and of the entries made therein of the
The repetition of the items of the former account conclusively demonstrates that the entries thus made in the ledgers by the defendant were copied from Liebman’s statement of the account. The matters thus referred to evidently escaped the attention of the court and counsel who, without any definite proof on the subject, assumed that the entries set forth in the ledgers were duly made. As the trust relation assumed by the defendant imposed on him the duty to keep accurate account, he will be responsible for the items of credit to which he admits Raski is entitled, aggregating $8,236.43, and the money received from the sale of the timber claim, $2,000.
The items of plaintiff’s indebtedness hereinbefore mentioned aggregate $9,835.52, and the sum of the credits acknowledged is $11,435.44, thus apparently leaving due the plaintiff $1,599.92. If all the evidence submitted had been legal, the balance of the account would have been in favor of Wise, and for that reason no decree for any part of that sum will be rendered against him, but, as Raski
The decree will be modified in accordance with the view here expressed, the plaintiff to recover his costs and disbursements in this court. Modified.