Buchanan v. Beck

• Decision Date: 03 January 1888
• Citation: 15 Or. 563,16 P. 422
• Parties: BUCHANAN v. BECK.
• Court: Oregon Supreme Court

16 P. 422

15 Or. 563

BUCHANAN v. BECK.

Supreme Court of Oregon

January 3, 1888

Appeal from circuit court, Multnomah county.

G.W Yocum and R & E.B. Williams, for appellant.

Zera Snow, for respondent.

THAYER J.

This case was begun in the justice's court for North Portland precinct in said county. The respondent filed in that court a complaint against the appellant, in which he alleged "that in the month of July, 1886, the defendant appellant herein, had and received of and from the plaintiff respondent herein, and for and to plaintiff's use and benefit, $125, in manner as follows: In the month of July 1886, plaintiff paid over to the defendant the sum of $125, for and in consideration of which defendant promised to sell and deliver to plaintiff, within a reasonable time thereafter, an American horse, sound, and fit, and suitable for a lady's driving horse. Then followed an alleged breach of the promise, and refusal upon the part of the defendant to comply therewith, and demand for judgment for said sum of money. The appellant in his answer to the said complaint denied the receipt of said $125 for plaintiff's use or benefit; denied that plaintiff paid over to defendant said sum, or any sum, for or in consideration of which the defendant promised to sell or deliver to plaintiff any horse; denied, in effect, the breach of any promise made by him to sell and deliver to plaintiff the horse mentioned in the complaint, or any horse. But averred that he sold and delivered to plaintiff a horse, at the time alleged in the complaint, for the agreed price of $125; that said sale was without warranty of soundness, or other warranty, and that said horse was worth the sum of $125. No reply was filed on the part of the respondent, and the case was tried upon the above issues. Judgment was rendered against the appellant in the justice's court for the amount claimed. He appealed therefrom to the said circuit court, where the case was tried anew, and the same result followed; and he then appealed to this court. Jury trials were had in both courts.

The appellant claims that errors of law were committed in the trials of the case prejudicial to him, and upon which he relies for a reversal of the judgment. It appeared in evidence at the trial, from the respondent's own testimony, as shown by the bill of exceptions, that he negotiated with the appellant for the purchase of a horse, such as described in the complaint; that, after stating to appellant the kind and style of horse he wanted to purchase, the appellant told him that he thought he had a horse that would suit him, and described him as possessing the qualities the respondent had mentioned as desirable. The latter asked him the price, and the former said, $125, saying, at the same time, "That is not too much, is it?" To which the respondent said, "No; not if he is the horse you describe, and is sound." "The appellant said he was; was all right; and that he would send the horse over to the respondent to look at and inspect. The next day a man came over from East Portland, where the appellant resided, and where he was engaged in the livery business, to Vancouver Barracks, where the respondent was stationed, being an officer at the post there, and brought with him the horse. The man introduced himself to respondent as "Look," whom appellant had sent over with the horse about which respondent had talked with appellant the day before.

Respondent looked at the horse, which looked all right, and apparently answered respondent's purpose. He then drove him up and down the Barracks avenue, and he appeared to go all right; that respondent noticed, when he stopped, that the knee advanced one foot ahead of the other,--a forward foot,--and called Look's attention to it. Look said it was only the position the horse stopped in, and assured respondent that he was all right, perfectly sound, and without a blemish. Respondent told Look if the horse were not sound he did not want him, as he wanted a horse his wife could drive at once, and he would not drive a lame horse. After some further talk of the same kind, respondent told Look to tell appellant that he would take the horse. Look then left with the horse. The next day, which was July 30, 1886, the appellant came over with the horse. Respondent called his attention to the peculiarity of the horse advancing one foot; and the appellant said, "Yes; I meant to tell you that I took a small piece of gravel from his hoof." Respondent then said to him that if there was anything the matter with the horse he did not want him; that he wanted a horse that his wife could drive at once. The appellant assured him that the horse was all right; that it would not interfere with his driving a particle; that he was sound, and respondent would so find him." The horse did not appear then to be lame,--appeared to drive all right. Respondent then told appellant to take the horse to the government stable, pointed it out, and gave him a check for $125; that he considered at that time that he "owned the horse, and so regarded himself." The respondent's counsel then proposed to prove certain matters which took place subsequent to the delivery of the horse and giving of the check in payment thereof, which took place between respondent and said Look, and also with the appellant, to which the appellant's counsel objected as incompetent and immaterial, and because there was no evidence tending to prove that Look had authority to act for appellant after the delivery of the horse. The court overruled the objection, and said counsel excepted to the ruling. This presents the main question in the case.

The appellant's counsel insist that, in view of the issue tendered by the complaint, the respondent had no right to show any subsequent arrangement between the parties, after the completion of the sale of the horse, as a ground of appellant's liability; that such matter must be alleged in order to be admissible in proof. It has been held in a great majority of the states that the mode of pleading heretofore known as "common counts" may still be employed, notwithstanding the adoption of the reformed system. In this state, however, the right is denied. This court, in Bowen v. Emmerson, 3 Or. 452, held that the use of the general counts in assumpsit was wholly inconsistent with the theory of the Civil Code. The principle of that decision, would not prevent a plaintiff from maintaining an action for money had and received for his use, provided that he allege facts in his complaint sufficient to show that the money paid to the defendant justly and equitably belonged to the plaintiff. Proof that the money legally became the property of the defendant would defeat the action, unless the plaintiff was able to establish that through some subsequent arrangement the money was still his. In order, however, to enable himself to make such proof, the fact would have to be alleged. He could as well have neglected to allege any facts under which the money was paid, as to have neglected to have alleged those he was permitted to prove against the appellant's objection, and which, he claims, established his right to the money. It would, so far as I am able to see, have been as tolerable for the respondent to have gone into court and only have alleged the payment of the $125 to and for his use and benefit, and have undertaken to establish it by the evidence in the case, as to have alleged what he did. He alleged sufficient, no doubt, to establish a pima facie case; but when it appeared that the money was paid for the horse, which was accepted and received by the respondent, and became his property, his case, as made in his complaint, was overthrown, and he was compelled to go outside of what he had alleged, in order to sustain it. The Code will not permit this, whatever may have been the rule at common law. This conclusion may be thought to be a very slight ground upon which to reverse a judgment that has been rendered upon the verdict of a jury, but the point comes squarely before the court, and however much we might dislike to dispose of the case in that way, yet I do not see how such a result could be avoided if there were no other questions in the case.

There is, however, another matter to be...