Smith v. Hurley, 143 P. 1123

143 P. 1123 | Or. | 1914

Mr. Justice Bean

delivered the opinion of the court.

The main contention of the defendant upon this appeal is that there is no' evidence to support the finding made by the trial court that the value of a one-half interest in the patent rights was $8,500. The question of fraud is not contested upon this appeal.

1-3. It is conceded that the wrench, or thé patent rights, have no market value; therefore evidence other than that must of necessity be resorted to, to prove its value. It is the law in this state that, upon an appeal of a cause tried by the court without a jury, the findings of the court have the force and effect of a verdict of a jury, and will not be disturbed, if there is any competent evidence that is substantial or satisfactory to support the findings. The wrench was submitted to the court for examination, and also evidence of the offer of the defendant to sell a one-half interest in the patents, and of the sale thereof, to Chapin and Read upon the basis of $8,500, was introduced. This was in addition to the evidence explaining the purpose of the patented wrench, its operation, and the evidence of the inventor, stating the cost of five wrenches for samples to be $90. In regard to the offer of sale for $8,500, made by the defendant to Mr. Chapin about two weeks before the sale was consummated, Mr. Chapin testified that he told him “that, unless I had a man to go into it with me to handle it, I would not take it, but that I thought that I had a man of that kind”; that he afterward told the defendant the man he had in view could not go into it, and that “it was off.” It appears that afterward the sale was made, as shown by the contract. The evidence of Mr. Chapin in regard to the offer of sale, as well as that of Mr. Read that the sale was made on a basis of $8,500, tends to show that in the negotiations and the consummation of the sale the value of the patent rights was estimated at that figure. The court, acting in the capacity of a jury, could reasonably believe from Mr. Read’s evidence that, the patent rights being sold on a basis of $8,500, the value thereof in the transaction was estimated or fixed at that amount; hence we have a stronger case than where evidence of an offer to sell is alone in evidence.

4. The general rule as to such showing of an offer to sell is stated in 1 R. C. L., page 494, Section 32:

“Where the value of property owned by a party is in issue it is held, as a rule, that his declarations may be proved by the opponent. * * While an offer of the owner of property to sell it at a certain price is not conclusive evidence of the value of the property, yet such an offer is. competent evidence against him as an admission in fixing the value at or near the time when the offer was made. ’ ’

See, also, Springer v. Chicago, 135 Ill. 552 (26 N. E. 514, 12 L. R. A. 614); Findlay v. Pertz, 74 Fed. 681 (20 C. C. A. 662); Joy v. Security Fire Ins. Co., 83 Iowa, 12 (48 N. W. 1049).

It appears to be the contention of the defendant’s counsel that an offer of sale by the owner tends only to show that the property is of no greater value. The Supreme Court of Wisconsin, in considering the question in Watson v. Milwaukee M. R. Co., 57 Wis. 332 (15 N. W. 468), said:

“This evidence was introduced for the purpose of showing that the land was in fact of greater value after the road was located across it than the value placed upon it by the appellants’ witnesses. We think the evidence was competent, not only as tending to prove its real value after the railroad was located across it, but as an admission on the part of the appellants of such value.”

Clearly in that case the evidence of an offer of sale by the owner was considered competent -for the purpose of showing that the property was equal to the amount of the offer. In East Brandywine & W. R. Co. v. Ranck, 78 Pa. 454, the court said:

“As evidence bearing upon the value of this property, Ranck’s own declarations were certainly competent when offered by the company. His offer of it at a fixed price, and the sale of a portion of it, were facts proper to go to the jury as constituting his estimate of its value. It is true the sale of a portion of the property does not fix with certainty its market value as a whole, but it is an element fair to be considered by the jury.”

It does not appear that the sale made by the defendant to Messrs. Chapin and Read was in any manner a forced sale, or that they purchased the patents on a basis of any more than they were really worth. The offer of sale made by the defendant near the time of the alleged conversion, and the actual sale made by him on the day after the purchase from the plaintiff, according to the defendant’s testimony, or according to the evidence on the part of the plaintiff before that time, was competent for the court acting as a jury to consider in determining the value of the property. It seems that the arrangement between Hurley and Chapin and Read in regard to the manufacture and sale of the patented wrench pertained only to the payment of the price fixed, and not to the price itself.

As against the seller, the price at which property is sold is generally recognized, not only as competent, but as the best, evidence of its value. The United States Supreme Court in The Albert Dumois, 177 U. S. 240 (44 L. Ed. 751, 20 Sup. Ct. Rep. 595), held that the actual sale price of a one-half interest in a vessel was better evidence of value than the conflicting opinions of experts. See, also, Parmenter v. Fitzpatrick, 135 N. Y. 190 (31 N. E. 1032), where, in an action against the sheriff for making a wrongful sale, the price at the sale was held competent to prove the amount of damages. To the same effect, see Baker v. Seavey, 163 Mass. 522 (40 N. E. 863, 47 Am. St. Rep. 475); Raymond Syndicate v. Guttentag, 177 Mass. 562 (59 N. E. 446).

5. Exception was taken to the remarks made by the judge in a lecture to the defendant, in which he denominated the transaction between the plaintiff and the defendant as a plain steal on the part of the latter, and stated that this was clear from the evidence, and likened the plaintiff to the fellow that went down from Jerusalem to Jericho and fell among thieves. These remarks are not a part of the findings of fact in the case. There was no' jury to be prejudiced, and they did not constitute reversible error. "Whether the comments of the judge bore fruit, or had any effect upon the defendant, we do not feel called upon to determine.

Competent evidence being found in the record to sustain the findings of the trial court, they should not be disturbed; therefore, in accordance with the mandate of the Constitution (Article VII, Section 3),. which directs that “no fact tried by a jury shall be otherwise re-examined in any court of this state, unless the court can affirmatively say there is no evidence to support the verdict, ’ ’ the judgment of the lower court is affirmed. Affirmed. Rehearing Denied.

Mr. Chief Justice McBride, Mr. Justice Eakin and Mr. Justice McNary concur.