Borg v. Utah Const. Co.

• Decision Date: 05 January 1926
• Citation: 242 P. 600,117 Or. 22
• Parties: BORG ET AL. v. UTAH CONST. CO. [a1]
• Court: Oregon Supreme Court

242 P. 600

117 Or. 22

BORG ET AL. v. UTAH CONST. CO. ^[a1]

Supreme Court of Oregon

January 5, 1926

Department 1.

Appeal from Circuit Court, Multnomah County; W. M. Gatens, Judge.

Action by Charles Borg and others against the Utah Construction Company. From an order setting a verdict for plaintiffs aside, canceling the judgment, and rendering and entering judgment in favor of defendant notwithstanding the verdict plaintiffs appeal. Order set aside, and cause remanded, with directions.

This action was instituted to collect the balance due for work and labor performed by plaintiffs under contract with the defendant. The plaintiffs recovered a verdict for the full amount demanded. The verdict was set aside, the judgment canceled, and a judgment rendered and entered in favor of the defendant against the plaintiffs notwithstanding the verdict. The plaintiffs appeal. The plaintiffs state in their brief that the appeal involves two things:

"First can a trial judge grant a motion for a judgment non obstante veredicto upon the grounds that the complaint does not state facts sufficient to constitute a cause of action when this same point has been urged in support of a motion for a nonsuit, as well as a motion for a directed verdict both of which motions have been overruled?

"Second does plaintiffs' complaint in this action state facts sufficient to constitute a cause of action?"

The defendant in his brief states the issue on appeal is as follows:

"The only question to be decided in this case is whether or not the complaint of the appellants failed to state facts sufficient to constitute cause of action."

Omitting the formal parts, the first cause of action in the complaint is as follows:

"That on or about the 24th day of August, 1921, plaintiffs entered into a written contract with the defendant, a copy of which contract is attached hereto, marked Exhibit A and is hereby referred to for its terms and provisions.

"That pursuant to said contract said plaintiffs graded and finished said work as specified in said contract, between said stations as therein specified, in a manner satisfactory to said engineers as in said contract specified, and during the performance of said contract plaintiffs blasted, quarried, and excavated 17,942 cubic yards solid rock, 942 yards intermediate rock, and 660 cubic yards of common rock.

"That by reason of this work, and pursuant to the terms of said contract, the said defendant became indebted to said plaintiffs in the sum of $11,909.70, no part of which has been paid save and except the sum of $9,534.97, leaving a balance due and owing to plaintiffs of $2,374.73, no part of which balance has been paid, although demand has been made therefor."

The second cause of action in plaintiffs' complaint is to recover the sum of $100 for some additional work performed by the plaintiffs at the request of the defendant.

B. A. Green, of Portland, for appellants.

T. G. Ryan, of Portland, for respondent.

COSHOW, J. (after stating the facts as above).

A motion for a judgment notwithstanding the verdict must be determined from the pleadings alone. Section 202, Or. L.; Snyder v. Portland Railway, Light & Power Co., 107 Or. 673, 676, 215 P. 887; Bertin & Lepori v. Mattison, 80 Or. 354, 358, 360, 157 P. 153, 5 A. L. R. 590; Houser v. West, 39 Or. 392, 395, 396, 65 P. 82; Kirk v. Salt Lake City, 32 Utah, 143, 89 P. 458, 12 L. R. A. (N. S.) 1021.

We deem it unnecessary to consider the first question propounded in appellants' brief. Inasmuch as the insufficiency of the complaint to state facts can be raised at any time, it is not necessary to decide the first question as propounded in appellants' definition of the issue raised on this appeal. Scibor v. O.-W. R. & N. Co., 70 Or. 116, 120, 121, 140 P. 629, is authority for the position taken by appellants that a motion for a judgment notwithstanding the verdict will not be considered when it raises the same question propounded on a motion for a nonsuit. The respondent insists that the complaint does not state facts sufficient to constitute a cause of action, and it has a right to present that matter here, even though it had not presented it to the circuit court. It did present it there, however, in an objection to the introduction of any testimony by the plaintiffs in its motion for nonsuit and also for a directed verdict. As a question of practice the circuit court should have refused to have entertained the motion for a judgment notwithstanding the verdict; but that becomes immaterial, since the respondent insists that the complaint does not state facts sufficient to constitute a cause of action.

An examination of the complaint leads us to the conclusion that it states facts sufficient to constitute a cause of action. The complaint is based upon a contract for labor and work performed by the plaintiffs for the defendant. The plaintiffs do not ask for damages for a breach of contract. The contract attached to the complaint and made a part thereof discloses that the plaintiffs and defendant entered into an agreement to do certain construction work on a railroad bed for which plaintiffs were to receive the amount of pay specified in the contract. The complaint sets out the amount of work plaintiffs claim to have performed together with the amounts they were to receive for the work; alleges that they performed the work, and that only a part of the amount agreed to be paid therefor had been paid, and asks judgment for the balance. There is no reference in the complaint to a breach of the contract other than the failure of the defendant to pay the sum agreed. The allegation "that, by reason of this work, and pursuant to the terms of said contract, the said defendant became indebted to said plaintiffs in the sum of $11,909.70," while a conclusion, is the logical deduction from the facts alleged in paragraphs 3 and 4 in the complaint. If paragraph 5...