Easton v. Quackenbush

• Decision Date: 20 November 1917
• Parties: EASTON v. QUACKENBUSH.
• Court: Oregon Supreme Court

168 P. 631

86 Or. 374

EASTON v. QUACKENBUSH.

Supreme Court of Oregon

November 20, 1917

Department 1.

Appeal from Circuit Court, Washington County; George R. Bagley Judge.

Action by Lewis M. Easton against E. Quackenbush. From a judgment for plaintiff, defendant appeals. Affirmed.

This is an appeal by the defendant on what is to him an adverse margin of 48 cents in the amount of the verdict. The plaintiff alleges the making of a written contract between the parties whereby he was to do some grubbing for the defendant, "the whole work to be done in a thorough manner, acceptable to the said E. Quackenbush." The stipulated price was $150, to be paid on completion of the task. The complaint states "that plaintiff has fully performed said contract upon his part to be kept and performed." Another cause of action was for labor by the plaintiff for the defendant at the special instance and request of the latter. The answer first denied all the allegations of the complaint without reserve, and then set forth the written contract as stated in the complaint barring a few minor verbal differences not altering the effect of the instrument. The pleading then states:

"That the plaintiff entered upon the performance of said contract but has failed to finish the same as and when therein provided, in this, that he has failed to remove the roots and débris from said ground and to put the same in a condition ready for the plow or scraper. That the entire work and services rendered by the plaintiff for the defendant are not worth to exceed the sum of $110. That defendant has paid the plaintiff the sum of $50 thereon, and hereby offers to permit a judgment to be entered against him in the sum of $60, and the accrued costs and disbursements up to this date."

The reply admitted the agreement as stated according to its tenor in the answer, but denied the remainder of that pleading. A day or two before the trial upon the issues thus formed, the defendant served upon plaintiff an offer to allow judgment to be taken against the former upon all the matters alleged in the complaint for the sum of $100, which was refused. This offer was not filed until after the trial. The jury found a verdict for the plaintiff in the sum of $100.48, upon which judgment was rendered. The defendant filed a motion for a new trial specifying his reasons in these words:

"(1) Irregularity in the proceedings of the jury.

"(2) Insufficiency of the evidence to justify the verdict, and that it is against the law.

"(3) Errors in law occurring at the trial and excepted to by the defendant."

This motion was overruled. On the appeal the defendant specifies the errors relied upon thus:

"(1) The court erred in receiving any testimony to support plaintiff's first cause of action, because said complaint does not state facts sufficient to constitute a cause of action.

"(2) The court erred in permitting the plaintiff to testify that the defendant arbitrarily and in bad faith refused to accept said work, because said complaint does not lay a foundation to entitle such testimony.

"(3) The court erred in refusing to instruct a verdict for the defendant as to the first cause of action.

"(4) The court erred in refusing to set aside the judgment and grant appellant a new trial."

J. E Bronaugh, of Portland (Bronaugh & Bronaugh and Franklin F Korell, all of Portland, on the brief), for appellant. Henry S. Westbrook, of Portland (Westbrook & Westbrook, of Portland, on the brief), for respondent.

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

For the first assignment of error it is enough to say that the complaint does state a cause of action in that it avers the making of the contract; that the plaintiff has fully performed the same upon his part; and that the defendant has not paid any of the specified price except a certain amount credited thereon.

"In pleading the performance of conditions precedent in a contract, it shall

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