Blair v. United Finance Co.

• Decision Date: 19 June 1963
• Citation: 235 Or. 89,383 P.2d 72
• Parties: Boyd J. BLAIR, Respondent, v. UNITED FINANCE COMPANY, a corporation, Appellant, Walter Green and Todd Green dba General Transport Co., Defendants.
• Court: Oregon Supreme Court

Page 72

383 P.2d 72

235 Or. 89

Boyd J. BLAIR, Respondent, v.UNITED FINANCE COMPANY, a corporation, AppellantWalter Green and Todd Green dba General Transport Co., Defendants.

Supreme Court of Oregon, Department 1.

Argued and Submitted June 5, 1963.

Decided June 19, 1963.

Denton G. Burdick, Jr., Portland, argued the cause for appellant.On the briefs were Hutchinson, Schwab & Burdick, Portland.

Warde H. Erwin, Portland, argued the cause and filed a brief for respondent.

Before McALLISTER, C. J., and ROSSMAN, SLOAN, GOODWIN and LUSK, JJ.

GOODWIN, Justice.

This is the third in a series of appeals generated by the repossession of a truck in 1952.Unfortunately, it may not be the last.

The background facts may be found in Berry v. Blair, 209 Or. 15, 303 P.2d 944(1956).In that case, judgment against Blair for the conversion of Berry's truck was affirmed.Blair paid that judgment and sued United Finance Co. for indemnity.Blair claimed that he was acting as an agent of United when he incurred the liability to Berry.Blair appealed from a judgment for United on a nonsuit.We reversed, holding that there was enough evidence to make out a jury question on the issue of agency.Blair v. United Finance Co., 228 Or. 632, 365 P.2d 1077(1961).

On the remand, the case was tried to a jury.United offered to prove that even if Blair was its agent, which was denied, he had ample opportunity to avoid creating the liability to Berry.

United also claims Blair was acting upon his own account or for third parties when he refused to let Berry redeem the truck.There was a jury question whether Berry ever made an effective offer to redeem.It was United's theory that, within the scope of any agency that existed, Blair should have collected the money due United and released the truck to Berry.Instead, United says, Blair turned the truck over to other creditors of Berry.This contention also presented a jury question.

The defendants now appeal from a judgment for Blair, assigning error, inter alia, to a refusal to give a requested instruction on the law of avoidable damages.The trial court did instruct, in a general way, upon the somewhat related but separate rule that a principal need not indemnify an agent who incurred the loss while acting outside or contrary to his authority.SeeRestatement, Agency2d, § 440.

The general rule that a plaintiff cannot recover damages for losses that he could have avoided by reasonable conduct on his part is usually referred to as the doctrine of avoidable consequences.The defense is somewhat akin to the tort doctrine of contributory...