Edwards, Guardian v. Hoevet
| Decision Date | 30 December 1948 |
| Citation | 185 Or. 284,200 P.2d 955 |
| Parties | EDWARDS, GUARDIAN, <I>v.</I> HOEVET |
| Court | Oregon Supreme Court |
5. Where plaintiff sought recovery in trial court on theory of account stated, plaintiff, on appeal from judgment for defendant notwithstanding the verdict, could not have verdict in her favor sustained on theory that assignment agreement signed by defendant and relied upon to establish an account stated constituted promise to pay the debt of another for consideration. Laws 1945, c. 149.
Appeal and error — Evidence — Prejudicial
6. A ruling upon admissibility of evidence, even if erroneous, would not warrant a reversal, in absence of showing that ruling was prejudicial.
Appeal and error — Judgment notwithstanding verdict — Functus officio
7. Where judgment in defendant's favor, notwithstanding the verdict, was affirmed, trial court's award of a new trial became functus officio. Laws 1945, c. 149.
See 1 C.J.S., Account Stated, § 15
84 A.L.R. 114; 175 Id. 248
1 Am. Jur., 272
Appeal from Circuit Court, Multnomah County.
David Spiegel, of Portland, argued the cause for appellant. On the brief were Lenske, Spiegel & Spiegel, of Portland.
J.S. Middleton, of Portland, argued the cause for respondent C.R. Hoevet. With him on the brief were Beach, Simon & Greene, of Portland.
Before ROSSMAN, Chief Justice, and LUSK, BELT, KELLY, BAILEY, BRAND and HAY, Justices.
Action by Margaret C. Edwards, guardian of the persons and estates of Elizabeth Ann Edwards, Josephine Joan Edwards, and Margaret Mary Edwards, minors, against C.R. Hoevet and others on account stated. From judgment in favor of named defendant notwithstanding verdict, the plaintiff appeals.
AFFIRMED.
This is an appeal by the plaintiff from a judgment which the circuit court entered in favor of the defendant after it had sustained a motion made by the defendant for the entry of judgment in his favor notwithstanding the return by the jury of a verdict in favor of the plaintiff. The motion of the defendant and the order entered by the court were pursuant to the practice authorized by 1945 Oregon Laws, chapter 149. The order which sustained the motion and entered judgment for the defendant also awarded a new trial.
It is clear that the appellant's cause of action, as stated in her complaint, is an account stated. Its amount is $10,350.00. The brief of her counsel says:
The appellant claims that the account was stated August 3, 1931. The respondent contends that no relationship of debtor and creditor existed between the appellant and the respondent when the purported stating of an account occurred and that, since an account stated can not create an original liability, the action of the parties of August 3, 1931, whatever it may have been, did not settle an account.
The appellant submits the following two assignments of error:
The following is a synopsis of the record. The appellant is the guardian of the persons and estates of three minor daughters of J.T. Edwards and wife. J.T. Edwards died May 24, 1930. His widow died a few years later. The complaint named as defendants C.R. Hoevet, John E. DuBois, Jr., and Westwood Lumber Company. Only Hoevet was served; he alone appeared in the circuit court and is the sole respondent. The Westwood Lumber Company is a corporation which owned and operated a sawmill at Wheeler. The mother of the aforementioned John E. DuBois, Jr., was the owner of all of the capital stock of the corporation. In 1924 the respondent, Hoevet, became the manager of the sawmill and vice-president of the corporation. He owned none of the latter's stock. In 1928 the aforementioned J.T. Edwards and the respondent formed a partnership which engaged in the logging business until its dissolution following Edwards' death in 1930. Shortly prior to Edwards' death the partnership sold to the Westwood Lumber Company a quantity of logs, and in consideration received six promissory notes signed by the purchaser in the amount of about $20,700.00. Three of the notes, having a total face value of slightly more than $10,350.00, became the property of Edwards; the other three were given to the respondent. The three which became the property of Edwards are the genesis of this action. April 4, 1931, possibly incidental to the probating of Edwards' estate, the three notes which had been delivered to Edwards were cancelled and three new ones were issued to his widow, Margaret Edwards, as administratrix of her deceased husband's estate. At or about that time a small payment was made upon principal, with the result that the total amount of the three notes was reduced to $10,350.00. By a succession of renewals the liability upon the notes has been continued.
To render understandable the manner in which the appellant claims that the account upon the notes was stated August 3, 1931, it is necessary to describe briefly two other transactions. In 1930, or the early part of 1931, the respondent and the aforementioned John E. DuBois, Jr., to whom we shall refer as Dubois, entered into a contract with the receivers of an insolvent concern entitled Oregon Logging & Timber Company whereby the two first mentioned agreed to purchase from the receivers a large tract of timberland which lay in the vicinity of the Westwood Lumber Company's mill. The contract price was $2.00 per thousand board feet of timber. It was anticipated the total sum payable would aggregate about $400,000.00. The two buyers paid upon the purchase price about $100,000.00. April 9, 1931, the two just mentioned entered into a contract with a corporation entitled Brix Logging Company whereby that concern agreed to log the tract and pay the respondent and DuBois $3.00 per thousand feet for the logs. Since that contract required the Brix Logging Company to proceed at once with the extensive logging operations, the respondent and DuBois were assured that the timber would be converted into cash.
The Brix Logging Company was a responsible, successful concern and partly as a result of that fact the contracts held by the respondent and DuBois were deemed valuable. The respondent expected that performance of the contract by the Brix Logging Company would yield a profit of $200,000.00 for himself and DuBois. After the Brix Company had signed the contract it spent $100,000.00 in building a logging camp and constructing other facilities preparatory to the performance of its undertaking.
When the aforementioned contracts were signed, the Westwood Lumber Company was in an impaired financial condition and the respondent felt that he was partially liable for debts due to two attorneys, Mr. George P. Winslow and Mr. C.W. Barrick, who had performed professional services incidental to the consummation of the contract for purchase of the timberlands of the Oregon Logging & Timber Company. The amount due to each attorney was $4,150.00. After the Brix contract was signed, Mr. Winslow urged that his account should be paid or that its payment should be secured. A creditor of the Westwood Lumber Company by the name of W.J. Riechers, to whom $62,699.28 was payable, also felt insecure and was pressing his account for payment about the time when the Brix contract was signed.
Riechers and Winslow believed that the Brix logging contract was an asset which should be assigned to secure the payment of the sums due them. Under its requirements about $600,000.00 would become payable to the respondent and DuBois. The respondent realized that if a creditor, through legal action taken for the enforcement of his claim, interferred with the performance of either the timber purchase contract or the logging contract, opportunity to realize the anticipated profit of $200,000.00 might vanish.
About the middle of 1931 Mr. Winslow and Mr. Riechers urged the respondent to assign the Brix contract to a trustee so that the sums to be paid by the Brix Company would be employed for the discharge of their accounts. August 3, 1931, Winslow, Riechers, Barrick and the respondent conferred. Barrick, in addition to being a member of the bar, was the secretary of the Westwood Lumber Company. At that time the respondent and DuBois possessed as valuable assets (1) the contract which enabled them to...
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