Edvalson v. Swick

• Decision Date: 24 January 1951
• Citation: 190 Or. 473,227 P.2d 183
• Parties: EDVALSON v. SWICK.
• Court: Oregon Supreme Court

Page 183

227 P.2d 183

190 Or. 473

EDVALSON v. SWICK.

Supreme Court of Oregon.

Argued Oct. 31, 1950.

Decided Jan. 24, 1951.

E. M. Sabin, of Union, and W. F. Brownton, of La Grande, argued the cause for appellant. On the briefs was E. M. Sabin.

Lewis Z. Terrall, of Union, argued the cause and filed a brief for respondent.

Before LUSK ¹, C. J., and BRAND ², ROSSMAN, HAY and WARNER, JJ.

WARNER, Justice.

This is an action at law wherein the plaintiff seeks to recover $1,181.77, as being the amount due him on the rescission of a contract made between the parties. From a judgment in plaintiff's favor in the amount of $800.00, defendant appeals.

Prior to the 21st day of February, 1949, the defendant was the owner of certain premises in the city of Union, upon which she conducted a cleaning and pressing business under the name of Union Cleaners. Plaintiff alleges that on or about that date, he and defendant entered into an oral contract wherein and whereby defendant agreed to sell him the premises and equipment used in said business for the sum of $8,000.00, upon payment of the sum of $1,500.00 down and the principal balance in monthly installments of $150.00 each. He further alleges that he made the down payment on the 21st day of February, 1949, and went into possession of said business with the defendant as his assistant; that he continued to make all of the required payments up to on or about the 1st day of June, 1949, and that on or about the 5th day of that month he demanded of defendant a written contract embodying the terms of their agreement and informed her that if she declined to furnish such a witten contract, to which he claimed he was entitled as a part of the initial sales contract, he would terminate the contract and demand a refund to him of all monies previously paid thereon. Plaintiff claims that at said time, the parties agreed that their initial sales agreement should be rescinded and that the defendant would refund and pay to plaintiff all monies paid by him to the defendant on account of the purchase price, less, however, the net receipts of the business received by plaintiff during the period of his operation, and that they would forthwith meet and have an accounting to establish the amount due plaintiff in accordance with their agreement of rescission. According to plaintiff, defendant failed and refused to have an accounting with him, which refusal resulted in the present action.

All the material allegations of plaintiff's complaint were admitted by defendant's answer, except as hereinafter indicated. The parties are not in accord as to the date of the agreement or the amount of the required down payment, which defendant says was $2,000.00 instead of $1,500.00 and upon which she claimed that plaintiff had paid no greater amount than $1,200.00. Defendant disputed the total amount of payments made by plaintiff on the contract and the amount of gross receipts which he had claimed he received from the business. These were later established by stipulation as being in the total amount of $1,667.40. Defendant also joined issue as to the amount of the operating expenses which plaintiff had incurred during the period of his operation, and denies that the contract was terminated by rescission in June and represents that plaintiff abandoned the contract on or about the 11th day of March, 1949, after which time she claims he served as an apprentice under her direction. The jury, however, rendered a verdict in favor of the plaintiff in the amount indicated.

Defendant brings to us eight separate assignments of error. The first assignment of error relates to the denial of defendant's motion for nonsuit. Her forth assignment is predicated upon the court's refusal to instruct the jury to return a directed verdict. We shall consider these two assignments together.

The grounds given by defendant in support of her motion for nonsuit were: (1) that the plaintiff had failed to produce substantial evidence as to the amounts of money received from the cleaning business during the period of his operation of the business; (2) that he had not substantiated his claim as to the payment of expenses in connection with the operation of the business; and (3) that he had failed to submit evidence to substantiate his allegation as to the amount of money paid by him to the defendant as down payment on the purchase contract.

Defendant's fourth assignment of error has its inspiration from a tendered instruction which, if given, would have instructed the jury to return a verdict in favor of the defendant and against the plaintiff. We here treat it as a motion for a directed verdict.

It is well settled that the motion of an adverse party for a nonsuit or for a directed verdict must specify the grounds therefor; and that when such a motion is denied, the gounds stated therein are conclusive on the moving party, and he may not urge for the first time on appeal additional grounds for the motion. Ingalls v. Isensee, 170 Or. 393, 133 P.2d 614.

When determining whether the trial court erred in denying defendant's motion for a directed verdict, this court considers the evidence in the record and every legitimate inference that can be drawn from it in the light most favorable to the plaintiff. It is not our duty to weigh or evaluate the testimony. Our function is limited to ascertaining whether there is substantial evidence to support the verdict of the jury. Dudleston v. Chiravollatti, 184 Or. 405, 415, 198 P.2d 858.

Applying the foregoing principles, we are of the opinion that there is substantial evidence to support the allegations of the plaintiff that he received the amounts he claimed to have received as income from the business and that he paid as expenses during the period of his operation the amounts of money as alleged in his complaint and made the down payments on the contract in the amounts which he claimed.

Plaintiff's second assignment of error is predicated upon the court's denial of defendant's motion for judgment notwithstanding the verdict. This motion rests on the following grounds:

'1. That the plaintiff failed to sustain the burden of proof.

'2. That the verdict is contrary to the evidence.

'3. That there was no competent evidence to support the verdict.

'4. For errors in admitting testimony over the objection of defendant.

'5. The testimony shows that defendant was entitled to a verdict.'

The court's authority to enter such a judgment is limited by the provisions of § 6-707, O.C.L.A., as amended by ch. 149, Or. Laws, 1945. To entitle one to such a judgment, the moving party must bring himself clearly under one of the four conditions authorized by that section.

The first three of the available grounds for the allowance of a motion for judgment notwithstanding the verdict under § 6-707, O.C.L.A., are determinable only by examination of the pleadings. Borg v. Utah Construction Co., 117 Or. 22, 26, 242 P. 600. The amendment made to § 6-707, O.C.L.A., by ch. 309, Or. Laws, 1941, added a new ground for such motion reading: '* * * when a motion for a directed verdict which should have been granted has been refused and a verdict is rendered against the applicant the court may, on motion, render a judgment notwithstanding the verdict, or set aside any judgment which may have been entered and render another judgment, as the case may require.' All the three grounds found in § 6-707, O.C.L.A., as it was prior to the amendment of 1941,...