Elder v. Rourke

• Decision Date: 20 July 1895
• Citation: 27 Or. 363,41 P. 6
• Parties: ELDER v. ROURKE.
• Court: Oregon Supreme Court

41 P. 6

27 Or. 363

ELDER v. ROURKE.

Supreme Court of Oregon

July 20, 1895

Appeal from circuit court, Umatilla county; Morton D. Clifford Judge.

Action by S.B. Elder against T.F. Rourke for services in cutting and harvesting grain. From a judgment for plaintiff, defendant appeals. Affirmed.

J.J. Balleray, for appellant.

A.D Stillman, for respondent.

BEAN C.J.

This is an action to recover $986.25, alleged to be due the plaintiff from the defendant for cutting and harvesting grain. The complaint alleges, in substance, that between August 1, and October 1, 1893, the plaintiff performed work and labor for defendant, at his special instance and request in cutting, heading, and harvesting the wheat then growing on 965 acres of land, at the agreed and stipulated price of $1.25 per acre, amounting in the aggregate to the sum of $1,206.25. That said work and labor was and is reasonably worth the sum of $1.25 per acre, and of the reasonable aggregate value above stated, and that no part thereof has been paid except $218. The defendant answered, denying all the material allegations of the complaint, and alleging, as a separate and affirmative defense, that the labor and services of plaintiff as alleged in the complaint were performed for and at the special instance and request of one J.M. Elgin, and that before the performance thereof the defendant, acting for and in behalf of the Pendleton National Bank, of which he was cashier, guarantied payment for plaintiff's services in cutting and heading the grain mentioned, to the extent of the proceeds of the wheat so headed and harvested when the same should be sold, and not otherwise; that $113.05 is the entire amount received from the sale of said wheat, which sum was paid to plaintiff prior to the commencement of this action. The reply put in issue all the allegations of the answer. A trial by jury was had upon the issues so made, which resulted in favor of the plaintiff, and defendant appeals.

The first, second, and third assignments of error relate to the ruling of the trial court in permitting plaintiff to testify that the work performed by him was reasonably worth $1.25 per acre. This evidence was within the issues made by the pleadings; but, if it had not been, its admission, if error, was harmless. There was no dispute as to what plaintiff was to receive for his work, but as a matter of fact it was admitted all through the trial that he was to have the agreed and stipulated price of $1.25 an acre, and proof that such sum was reasonable could in no way prejudice the defendant. The gist of the controversy was whether the defendant had become personally liable to the plaintiff for the value of said work and labor, or whether the Pendleton National Bank, through defendant as agent, had agreed to become surety for Elgin to the extent of the proceeds of the wheat harvested by plaintiff, after the same should be threshed and disposed of. This was the contested question in the case, and the one submitted to the jury by the court, and hence evidence of the reasonable value of the work was immaterial, and its admission affected no substantial right of the defendant.

The next assignment of error is in overruling defendant's motion for a nonsuit. It is admitted, as we understand it that the evidence of plaintiff tended to show that a contract for cutting the wheat was made by him with the defendant individually at an agreed price of $1.25 per acre, but the...