Barr v. Linnton Plywood Ass'n
| Decision Date | 25 May 1960 |
| Citation | 352 P.2d 596,223 Or. 541 |
| Parties | Jess L. BARR, Appellant, v. LINNTON PLYWOOD ASSOCIATION, Respondent. |
| Court | Oregon Supreme Court |
Theodore S. Bloom, Portland, argued the cause and filed briefs, for appellant.
James W. Morrell, Portland, argued the cause for respondent. With him on the brief were Tooze, Kerr & Tooze, Portland.
Before McALLISTER, C. J., and SLOAN, O'CONNELL and DUNCAN, JJ.
In this action plaintiff sought to recover from defendant a commission for the sale of logs. The complaint alleged an express agreement between the parties by which it was also alleged plaintiff was to sell the logs at certain specified prices for varying grades of logs and that plaintiff was to be paid a commission of $5 per thousand for making a sale. The complaint then alleged that plaintiff found a buyer ready and willing to pay the prices specified by defendant but defendant refused to make the sale arranged by plaintiff and that defendant thereby breached its agreement with plaintiff.
When plaintiff rested defendant moved for judgment of involuntary nonsuit. The motion was denied. After the court had denied the motion for a nonsuit the defendant declined to present any evidence and plaintiff then moved for a directed verdict. The trial court denied that motion also. The jury returned a verdict for plaintiff. Thereafter defendant filed, and the trial court sustained, a motion for judgment notwithstanding the verdict. The order allowing the judgment n. o. v. recited that the court should have sustained defendant's motion for an involuntary nonsuit.
ORS 18.140(1) permits a judgment notwithstanding the verdict inter alia when a 'motion for a directed verdict which should have been granted has been refused and a verdict is rendered against the applicant * * *' In this case defendant did not move for a directed verdict. However, the plaintiff did not make an issue to the trial court nor in this court that the order allowing the judgment n. o. v. was deficient because it was based upon the failure to allow the motion for involuntary nonsuit rather than upon a failure to allow a motion for a directed verdict as provided by ORS 18.140(1). We will not, therefore, consider the sufficiency of the order as entered. '* * * it is only in rare cases that this court will notice an alleged erroneous ruling of the trial court to which no exception was taken or objection made by the appellant.' State v....
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Ailes v. Portland Meadows, Inc.
...inferences. Here, the legal error identified by the majority is not "apparent;" instead, as illustrated in Barr v. Linnton Plywood Ass'n, 223 Or. 541, 352 P.2d 596 (1960), the legal point is one which is in reasonable In Barr, the defendant failed to move for a directed verdict before seeki......
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Ailes v. Portland Meadows, Inc.
...do not comprise a necessary or complete checklist; they merely are some of the permissible considerations.7 In Barr v. Linnton Plywood Ass'n, 223 Or. 541, 542-43, 352 P.2d 596, 355 P.2d 256 (1960), this court implicitly held that such an error is not jurisdictional. In Barr, the defendant d......
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Ragnone v. Portland School Dist. No. 1J
...a motion, the purpose of which is to render a nullity the only judgment entered in the cause. The parties cite Barr v. Linnton Plywood Ass'n, 223 Or. 541, 352 P.2d 596, 355 P.2d 256 (1960) as permitting an appeal from an order allowing a motion for judgment notwithstanding the verdict. We d......
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German v. Kienow's Food Stores
...does not take the place of a motion for a directed verdict. Clarizo v. Spada Distributing Co., Inc., supra; Barr v. Linnton Plywood Ass'n, 223 Or. 541, 543, 352 P.2d 596, 355 P.2d 256 (1960). The distinction is that one motion forces the trial court to make a ruling that results in a judgme......