84 P. 473 | Or. | 1906
delivered the opinion of the court.
It is contended by plaintiff’s counsel that the article set out in the complaint is prima facie actionable, and, this being so, the court erred in submitting to the jury the question whether or not the language was susceptible to such construction and in not charging that it was libelous per se. Defendants’ counsel deny the legal propositions so asserted, and maintain that the complaint fails to state facts sufficient to constitute a cause of action, and that, as the judgment was in favor of their clients, no alleged error of the court in the trial of the cause can be considered.
“It shall be illegal for any director, either directly or indirectly, to have any pecuniary interest in the erection of schoolhouses, or for the warming, ventilating, furnishing, or repairing the same.” B. & C. Comp. § 3389, subd. 19.
When this section was adopted, the following provision as a part of the same statute was enacted, to wit:
“Any member of any school district board * * who-shall violate any of the provisions of this act shall be*625 deemed guilty of a misdemeanor, 'and upon conviction shall be punished by a fine not less than twenty-five dollars nor more than one hundred dollars, or by imprisonment in the county jail not less than six months, or both such fine and imprisonment”: B. & C. Comp. § 3391.
• It will be remembered that the printed matter set out in the complaint contains the following clause:
“It is Woolley who lets contracts for school buildings, supplies the hardware, paints, roofing and the poorest goods for the highest prices; grants a $4,000 extra bill; accepts or rejects the work at pleasure, thus compelling the contractor to submit to high prices for inferior wares or invite trouble in having his work accepted. It was at this man’s dictation that an expensive, out of date hot air heating apparatus was installed in the high school building. But then he had an opportunity to sell the district an expensive gasoline engine at a big profit, which costs more to operate than would be required to heat the entire building with a modern plant, but there would not have been any rake-off on this kind of a plant for the high mogul.”
It is not directly stated in this excerpt to whom the “hardware, paints, roofing and the poorest goods for the highest prices” were supplied by plaintiff, but when it is asserted that he “accepts or rejects the work at pleasure, thus compelling the contractor to submit to high prices for inferior wares or invite trouble in having his work accepted,” it reasonably appears, when the printed article is considered in its entirety, that plaintiff is charged with having made such sales to the person who had a contract for the construction of the high school building, thereby imputing that Woolley had an indirect pecuniary interest in the erection of a schoolhouse in the City of Roseburg of which he was a school director. So, too, the charge that at plaintiff’s command a hot air circulating apparatus was placed in the high school building, whereby “he had an
“ If you should find under the instructions I shall give you that the article was libelous, then, under the evidence in this case, they would be responsible for it.”
An exception having been taken to this part of the charge, the error committed necessitates a reversal of the judgment, which is hereby- ordered.
For the giving of the instruction complained of the-cause is remanded for a new trial. Reversed.