Edvalson v. Swick

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

Page 183

227 P.2d 183 190 Or. 473 EDVALSON
v.
SWICK. Supreme Court of Oregon. Argued Oct. 31, 1950.
Decided Jan. 24, 1951.

Page 184

[190 Or. 475] 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.

[190 Or. 476] 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

Page 185

$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 [190 Or. 477] 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 Plaintiff claims that at said time, the parties agreed that their initial sales agreement should be rescinded and that the defendant would refund and pay to plaintiff all monies paid by him to the defendant on account of the purchase price, less, however, the net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 [190 Or. 478] 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,...