East Side Mill & Lumber Co. v. Southeast Portland Lumber Co.

• Decision Date: 19 January 1937
• Citation: 155 Or. 367,64 P.2d 625
• Parties: EAST SIDE MILL & LUMBER CO. v. SOUTHEAST PORTLAND LUMBER CO. et al.
• Court: Oregon Supreme Court

64 P.2d 625

155 Or. 367

EAST SIDE MILL & LUMBER CO. v. SOUTHEAST PORTLAND LUMBER CO. et al.

Supreme Court of Oregon

January 19, 1937

Department 2.

Appeal from Circuit Court, Multnomah County; Hall S. Lusk, Judge.

Action by the East Side Mill & Lumber Company against the Southeast Portland Lumber Company and another. From a judgment for the plaintiff against the named defendant, the named defendant appeals.

Affirmed.

Leo J Hanley, of Portland (Cookingham & Hanley, R. G. McCarty, and Ridgway, Johnson & Kendall, all of Portland, on the brief) for appellant.

"Right of action" is right to bring suit in a case, and arises only where there is a cause of action.

Supreme Court would not impose penalty of 10 per cent. of amount recovered against appellant for delay caused by appellant in its appeal of case where appeal was not frivolous. ORS 19.160.

L. J Balbach and Wendall K. Phillips, both of Portland (Sheppard & Phillips and L. J. Balbach, all of Portland, on the brief), for respondent.

BAILEY Justice.

East Side Mill & Lumber Company, as plaintiff, recovered judgment against the defendant Southeast Portland Lumber Company in an action tried to the court without the intervention of a jury, from which judgment the defendant corporation has appealed.

One of the principal assignments of error is based upon the court's failure to find and adjudge that the action was barred by the statute of limitations (Code 1930, § 1-204). The original complaint was filed on October 17, 1931, within six years from the date when the cause of action accrued. The amended complaint, however, was not filed until April 27, 1934, after the expiration of such six-year period. The defendant corporation contends that the amended complaint sets forth a new cause of action, different from that alleged in the original pleading, and that such amended complaint therefore does not relate back to the date of the commencement of the action and relieve against the bar of the statute of limitations. It will therefore be necessary, in passing upon this question, to refer to and quote from both the original and the amended complaint. In both of those pleadings Southeast Portland Lumber Company and A. J. Dwyer were named as defendants and recovery was sought against them jointly. Judgment of involuntary nonsuit was granted in favor of Dwyer and against the plaintiff.

In the original complaint the cause of action against the defendants was alleged as follows: "That heretofore and between the 21st day of January, 1924, and the 12th day of May, 1927, plaintiff, at the special instance and request of the defendants, performed work, labor and services for the defendants, furnished goods, wares and merchandise and loaned and advanced to the defendants, money in the sum of $13,939.12, and all of which work, labor and services, said goods, wares and merchandise and said money, were furnished and delivered to the defendants at their special instance and request, no part of which has been paid save and except the sum of $2,274.55, paid October 19, 1925; and the further sum of $432.70, paid September 12, 1927; and that there is now due, owing and unpaid from defendants to plaintiff the sum of $11,231.87, no part of which has been paid, although the same is long past due, and which said sum the defendants and each of them fail, refuse and neglect to pay."

Thereafter a motion was filed by attorneys for the defendant corporation to make the complaint more definite and certain (1) by requiring the plaintiff to set forth the items of the account going to make up the sum of $13,939.12; (2) by setting forth "what work, if any, what labor, if any, and what services, if any, were performed by the plaintiff for the defendants"; (3) by setting forth the dates upon which the alleged labor was performed and the services were furnished; (4) by setting forth what goods, wares, and merchandise, if any, were furnished; (5) by alleging the dates upon which goods, wares, and merchandise were sold; (6) by setting forth what moneys were loaned and advanced to the defendants; and (7) by setting forth the dates of such alleged advances.

Subsequently, and pursuant to a stipulation between counsel for the litigants, the amended complaint here involved was filed, with paragraphs IV and V thereof reading as follows:

"IV. That heretofore, between the 21st day of January, 1924, and the 14th day of March, 1927, at the special instance and request of the above named defendants, the plaintiff performed work, labor and services for the said defendants, and delivered and furnished to them goods, wares and merchandise and loaned and advanced to said defendants certain sums of money; in the aggregate amount of $45,852.29.

"That form time to time during the period aforesaid, as of the dates upon which work, labor and services were performed, goods, wares and merchandise delivered, and moneys loaned to said defendants, the said defendants were charged therefor upon a mutual, open and current account containing reciprocal demands; that the amounts set forth in said account were reasonable, and the said defendants agreed to pay the amounts set forth in said account. That from time to time during the period aforesaid, certain allowances by way of credit were made to the defendants upon said account; that during said period, also, this plaintiff purchased from said defendants certain quantities of lumber, for which the said defendants were credited upon aid account, and that from time to time during said period the defendants made payments upon said account, all of which credits were agreed by the parties hereto to constitute offsets against the charges due plaintiff for goods, wares and merchandise, work, labor and services, and money loaned, as hereinabove set forth. That the said defendants, and each of them, at all times had full knowledge of said account and acquiesced therein, and the credits hereinabove mentioned were understood by said defendants, and each of them, to constitute a part of said account, and when the transactions out of which said credits arose took place, said credits were applied upon said account with the knowledge of and at the special instance and request of said defendants; a copy of said account being hereto attached, marked Exhibit 'a', and made a part hereof.

"V. That on the 19th day of October, 1925, the said defendants paid the sum of $2,274.55 on said account, and on the 12th day of September, 1927, said defendants paid the sum of $432.70 thereon, and that there is now due and owing upon said account from said defendants, and each of them, to this plaintiff the sum of $11,231.87, together with interest at six per cent per annum from the 14th day of March, 1927, until paid."

Attached as Exhibit "A" to the amended complaint is an itemized statement showing the date when goods, wares, and merchandise were sold by the plaintiff to the defendant Southeast Portland Lumber Company, the dates and amounts of money loaned, freight paid, and the amounts of credit allowed the plaintiff with the defendant corporation. This itemized statement showed a balance of $11,231.87, which was the amount alleged in the original and amended complaints as being the defendants' indebtedness to plaintiff.

The question of the bar of the statute of limitations is raised by the defendants' third further and separate defense, in the following language: "That the cause of action set forth therein did not accrue within six years before the commencement of this action."

Some doubt is cast by the respondent upon the sufficiency of the plea in regard to the bar of the statute of limitations. The contention in that respect is that the answer to the amended complaint should have alleged that the cause of action set forth in that pleading was a different one from that alleged in the original complaint and that since it was a new and different cause of action the amended complaint was not filed within time. This objection to the sufficiency of that affirmative defense does not appear to have been urged in the trial court, and we shall therefore treat the answer was sufficient to present such defense.

In 1 C.J.S. Actions, § 8, in discussion of the term "cause of action" it is said:

"'Cause of action' is a term of varying and doubtful meaning; and because of its many different and delicate shades of meaning according to the circumstances in which it is used, the courts have found it difficult to give any general definition of the term, and perhaps no definition could be framed which would be entirely free from criticism, although it has been said that there is no legal expression the meaning of which is more clearly apparent. ***

"A cause of action has been briefly defined, in a general sense, as a claim which may be enforced; matter for which an action may be brought; the subject matter of a controversy; the subject matter upon which the plaintiff grounds his right of recovery; the ground on which an action may be maintained or sustained; that which produces or affects the result complained of; or which produces the necessity for bringing the action; the ground or reason for the action."

With reference to the meaning of the term "cause of action," in 1 Am. Jur., Actions, § 2, we find: "What is a cause of action is not easily defined and the authorities have laid down no thoroughly satisfactory and all-embracing definition. Many authorities define a cause of action as being the fact or facts which establish or give rise to a right of action, the existence of which affords a party a right to judicial relief. The facts which comprise the cause of action are those which, if traversed, the plaintiff is obliged to prove in order to obtain judgment, or those facts which the defendant would...