Anderson v. East Oregon Lumber Co.

• Decision Date: 16 January 1923
• Citation: 211 P. 937,106 Or. 459
• Parties: ANDERSON v. EAST OREGON LUMBER CO.
• Court: Oregon Supreme Court

211 P. 937

106 Or. 459

ANDERSON v. EAST OREGON LUMBER CO.

Supreme Court of Oregon

January 16, 1923

In Banc.

Appeal from Circuit Court, Wallowa County; J. W. Knowles, Judge.

Action by George S. Anderson against the East Oregon Lumber Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Harris and Bean, JJ., dissenting.

Daniel Boyd and J. A. Burleigh, both of Enterprise for appellant.

Blaine Hallock, of Baker (Nichols, Hallock & Donald, of Baker, on the brief), for respondent.

BURNETT J.

It is agreed by both parties that the defendant, as party of the first, and the plaintiff and five others, as parties of the second, part, executed a written contract of which the following is a copy:

"This agreement, made and entered into in duplicate this 1st day of February, 1921, wherein East Oregon Lumber Company is party of the first part, and Daniel Sword G. S. Anderson, Ole Holland, Emil Edwardson, Pete Burreson and Ole Burreson are parties of the second part, witnesseth:

"That the consideration of this agreement is the mutual covenants entered into and agreed to by the parties of this agreement:

"The parties of the second part agree with the party of the first part that they will pile in the yard of the East Oregon Lumber Company or on the dry kiln trucks, as the East Oregon Lumber Company may designate, all the lumber manufactured at their mill situated in Enterprise, Oregon from February 1, 1921, to January 1, 1922, for the sum of forty-seven and one-half cents (47 1/2¢) per thousand feet (log scale plus twenty per cent. [ 20%] as tallied on the log deck).

"The party of the first part further agrees to pay the party of the second part ten cents (10¢) per thousand pieces for the piling of lath, either in the yard or on kiln trucks as designated by the party of the first part. All of the piling shall be done in a workmanlike manner and as may be directed by the party of the first part.

"The party of the first part agrees and does hereby contract with the parties of the second part to perform the services and labor upon the terms and conditions herein named, and agrees to pay the consideration above named in the manner as follows, to wit:

"The amount of lumber piled from the 1st to the 15th inclusive, of every month shall be paid for on the 25th of the month, and the amount of lumber piled from the 16th to the last day, inclusive, of the month shall be paid for on the 10th of the month following, except that the party of the first part shall have a right, and they shall reserve and withhold from the parties of the second part the total earnings for a period of ten (10) days, as a guarantee by the parties of the second part that they will perform their part of this agreement in full, according to the terms herein named; and it is mutually understood and agreed that such sums of money as earnings retained by said East Oregon Lumber Company shall be considered as damages due and owing said East Oregon Lumber Company for failure of the party of the second part in any way to fulfill the obligations of this contract. "It is further agreed and understood that the price herein named will be revised at any time there is a change in the market wage.

"It is further agreed and understood that, in case the parties of the second part shall fail to pile the lumber, the party of the first part may employ men to such a number as will be necessary to pile the lumber as herein set out, and to pay such men at the reasonable market wage for such work, and charge the items paid out for such work to the parties of the second part herein.

"It is further mutually agreed and understood that this contract shall not be altered or added to, except in writing, and that such writing shall be signed by all the parties hereto.

"In testimony whereof the parties have hereunto set their hands and seals to this agreement in duplicate, this ______ day of February. 1921. [ Signed] East Oregon Lumber Company, by R. E. Graham, Party of the First Part. Daniel Sword, George S. Anderson, Ole Holland, Emil Edwardson, Peter Burreson, Ole Burreson, Parties of the Second Part."

The complaint recites the corporate character of the defendant, pleads the contract according to its legal effect and likewise according to its tenor by attaching a copy as an exhibit, and then says, in substance, that pursuant to the terms of said agreement the plaintiff entered upon the performance of the labor of piling lumber about February 1, 1921, and continued until April 14 of that year, at which time the defendant discharged him and failed to continue him in its employ in the capacity indicated by the contract or otherwise or at all, and refused to pay him the contract price for the services set forth in the agreement or any other price or compensation after the date of his discharge, although the plaintiff has been ready, able, and willing to continue his employment. The complaint then says in substance that, if the plaintiff had been permitted to continue in the employment of the defendant during the full period of the contract, he would have earned $9 per day, or $234 for a month of 26 working days, and that as a direct result of the wrongful and unlawful act of the defendant in discharging him he was deprived of those moneys to his damage in the sum of $1,989.

According to the abstract, the defendant demurred to the complaint in these words:

"That there are defective parties plaintiff.

"That the same does not state facts sufficient to constitute a cause for action."

The demurrer was overruled, and the defendant answered, admitting its own corporate character as well as the execution of the contract already quoted, but denying all of the other allegations of the complaint except as thereafter specified. The answer charges that the plaintiff voluntarily abandoned the work under the contract owing to a dispute with his fellow contractors; that the plaintiff and all parties of the second part to the contract have been paid in full for all lumber piled by them; that the contract is a joint agreement; and that the other parties named therein should be made parties plaintiff. The reply admits the contract and attempts to draw certain legal conclusions from the same.

When the case came on for trial before the jury, the defendant seasonably objected to taking any testimony, on the ground that the complaint does not state facts sufficient to constitute a cause of action, specifying nonjoinder of parties plaintiff, in that the other parties, signers of the contract, naming them, have not been joined as parties plaintiff with the present plaintiff; that the contract is void for want of mutuality; that the plaintiff is not an employé, but an independent contractor, in consequence of which there could be no breach of the contract as alleged in the complaint and the plaintiff has no right to bring the action; and, lastly, that it is impossible to prove any damages as set out in the complaint. The objection was overruled. A motion for nonsuit at the close of plaintiff's case, for practically the same reasons, was denied by the court. The case went to judgment in favor of the plaintiff, and the defendant appealed.

Under section 68, Or. L., when the objection appears on the face of the complaint, the defendant may demur to the same because "there is a defect of parties plaintiff or defendant," or "the complaint does not state facts sufficient to constitute a cause of action." Apparently there was an attempt to demur because the parties plaintiff were too few, but, owing possibly to a clerical error, the demurrer does not raise the point. "Defective parties" is a misnomer, and it does not appear whether the parties were "defective" in mind, body, or estate. That branch of the demurrer must therefore be disregarded, and under section 72 Or. L., we must consider that the defendant waived the nonjoinder of the other parties to the contract.

It is clear, however, that the men who agreed to pile the lumber are joint contractors. There was no stipulation for their personal services. By what means they accomplished the work was of no moment to the defendant. Results only were contemplated, and the price per 1,000 feet of lumber or 1,000 feet of lath was to be paid to the whole six contracting parties as a distinct contracting entity. No several rights are defined or mentioned in the contract. All such are merged in the joint stipulation. If it be true that the defendant prevented the present plaintiff from working in piling the lumber, it would be a breach of the contract, for only by that contract in which he joined with others, could the plaintiff have any right to work at all. The breach of the contract was an offense against the joint combination of contracting parties. The other five men had a right to the assistance of their cocontracting party in the prosecution of...