By the Court,
Thе first question to be considered is, had the circuit court the authority to refer the issues in this case to a referee, without the consent of the appellant? From the record it appears that after the referee was appointed the appellant moved to have the trial of the issues withdrawn from the referee. The counsel for the appellant now insists that the circuit court had no authority to refer this case to a referee, it being an action at law; that although the trial of the case would involve the examination of long accounts between the parties, the question whether the re
lection 219: i£ When they do not consent, the court may, pon the application of either, or of its own motion, direct a reference in the following cases: 1. When the trial of аn issue of fact shall require the examination of a long account on either side, in which case the referee may be directed to heаr and decide the whole issue, or to report upon any specific question of fact involved therein.”
In this case, in order to determine the quеstion whether or not the respondents had performed their contract, it became necessary to examine and determine the items chаrged in the appellant’s counter-claim, which was an account set out in the answer, in which it was claimed that the appellant had been dаmaged in various sums by the failure of the respondents to do certain specified portions of the work according to the contract. And, in fact, to determine any of the material issues in the case, involved the examination of accounts either of the respondents or appеllant. The case, therefore, comes within the purview of the statute above referred to. It is claimed by the appellant that if this procеeding is authorized by the statute, it impairs the right of trial by jury in civil cases in actions at law, and that the statute is void from being in conflict with section 17, of article 1, of the constitution of this state, which provides that, “In civil cases the right of trial by jury shall remain involved.” This language of the constitution indicates that the right of trial by jury shall continue to all suitors in courts in all cases in which it was secured to them by the laws and practice of the courts at the time of the adoption of the constitution. (
The statute in question was passed by the legislature of the late territory of Oregon in 1854, and has been copied into the present code; so that this statute has been in once since that time, and was the law of the territory at the time the constitution was аdopted, and, therefore, does not abridge the right of trial by jury as it existed when we became a state. Under this statute, cases like this have been rеferred and tried by a referee, without question as to the authority of the court to order the reference, for quarter of a century; and was there doubt as to the constitutionality of this statute, it would, under the circumstance and the sanction of long usage, have to be solved in favor of the statute. (Cooley’s Constitutional Limitations, 4;
We think there is no doubt of the validity of the statute, and that its provisions are wise, and aid in enabling the courts to arrive at just conclusions in cases of this nature, which can not be intelligently tried by a jury.
The other ground of error urged by the appellant is that as the respondents have sued on a special contract, tо do work for a fixed price named in the contract, they must show that they have in all respects fulfilled the contract on their part in order to rеcover. And that having failed, in some respects, to do the work according to the specifications in the contract, they cannot reсover on the contract, or on the quantum meruit for the value of their work which has been received by the appellant, and is of value to him.
Issue was mаde between the parties as to the completion of the work by the respondents, and the referee finds on this issue as follows: Second finding. “That in pursuance of said contract, the respondents did the carpenter work and furnished the necessary materials thereto, under the direction of, and to the satisfaction of C. B. Talbot.” Said Talbot was the architect who had charge of the work, and by the terms of the contract, was' empowered by the appellant to pass upon the quality of the work and materials.
The contract between the parties also expressly provides
"Wien they had completed this work “to the satisfaction of ilm architect,” they were entitled to their pay for the worklalthough some parts had been omitted by consent of the afchitect, who was the agent, in that behalf, of the appel7 aft.
Tn» finding of the referee was adopted by the circuit court,mnd in that court was entitled to the same consideration as the verdict of a jury. (Statute, p. 151, sec. 226.) Unless it was clearly against the evidence, the court should have given judgment on the report. "We think, in this case, that we are not warrantеd in going behind this report to determine from the evidence the correctness of the findings of facts by the referee, but that these findings should be taken as truе, unless the same are manifestly erroneous, which does not appear in this case.
"We think, therefore, that, from the facts as found, the respondents did perform their contract, and that all the questions presented by counsel for the appellant as to the right of a party to recоver for the value of his services on a special contract, when the same has not been fully completed, but such services have beеn of value to the party for whom they were performed, become immaterial in the determination of this case.
"We think the rule in this state is, that where one performs service for another on a special contract, and for any reason, except a voluntary abandonment, fаils to fully comply with his contract, and such compliance becomes impracticable, and the service has been of value to him for whоm it was
We think what has been said disposes of all the material questions raised in the argument, and that the judgment of the circuit court should be affirmed with costs.