Wallace v. Armstrong

113 P. 50 | Or. | 1911

Mr. Justice McBride

delivered the opinion of the court.

1. The objection to the findings upon the first cause of action cannot be sustained. The complaint and the answer agree that a sign, such as described in plaintiff’s complaint, was made by defendant and placed in position on the Tilford .Building, but alleges that it differed from the sign ordered in punctuation.

The third finding, while not as definite as could be wished, practically finds that plaintiff substantially complied with his contract. It was not necessary to describe such sign, as the answer admits that it was the same as described in the complaint.

2. The findings completely cover the issues raised on the second cause of action, and upon such findings plaintiff was entitled to a judgment for $225. Defendant has suffered no substantial injury, but, upon the contrary, has been benefited by the court giving judgment for a smaller amount than the findings indicate he was entitled to.'

3. In order to sustain the allegations of the second cause of action, plaintiff testified, in substance, that on or about the 20th day of August, 1908, he entered into a verbal contract with the defendant, by the terms of which it was agreed that plaintiff should construct and place upon the Tilford Building the gold-lettered sign mentioned in the complaint, and stated that for such services the cost thereof should be in proportion to the cost of a similar sign constructed by plaintiff for defendant and placed upon another portion of such building; that the cost thereof, as compared with the other, was $225. The defendant objected to this testimony, as to the cost of the sign. The objection was overruled and an exception allowed. The bill of exceptions does not disclose the whole of the testimony as to the second cause of action. No ground was assigned for the objection to the foregoing testimony; but counsel contends that it constitutes a fatal variance from the complaint, which alleged a direct promise to pay $225. We think such variance would be immaterial if the data were available to both parties, so that the cost would be a mere matter of mathematical computation.

4. No doubt plaintiff and defendant knew the cost of the sign previously painted, and, taking this amount as a basis, the contract became certain as to the consideration. In any event, plaintiff could not stand upon a general objection which did not call the court’s attention to the exact error which he claimed: Hildebrand v. United Artisans, 50 Or. 159 (91 Pac. 542).

5. It is also claimed that, defendant not having accepted the property, plaintiff’s remedy is by an action for damages and not upon the contract. Whatever may be the rule in other jurisdictions, the courts of this State have uniformly held contrary to defendant’s contention: Smith Brothers v. Wheeler & Simmons, 7 Or. 49 (33 Am. Rep. 698); Longfellow v. Huffman, 49 Or. 486 (90 Pac. 907).

It does not appear that any substantial right of defendant has been prejudiced by any action of the lower court, and the judgment is therefore affirmed. Affirmed.