Fenlason v. Pacific Fruit Package Co.

• Decision Date: 25 November 1924
• Citation: 230 P. 547,112 Or. 633
• Parties: FENLASON v. PACIFIC FRUIT PACKAGE CO.
• Court: Oregon Supreme Court

230 P. 547

112 Or. 633

FENLASON v. PACIFIC FRUIT PACKAGE CO.

Supreme Court of Oregon

November 25, 1924

Department No. 2.

Appeal from Circuit Court, Multnomah County; Walter H. Evans, Judge.

Action by O. C. Fenlason against the Pacific Fruit Package Company. Judgment for plaintiff, and defendant appeals. Reversed, and new trial ordered.

Fred M. Bond, of South Bend, Wash., and E. E Heckbert, of Portland, for appellant.

C. A Sheppard, of Portland (C. O. Fenlason, of Portland, on the brief), for respondent.

PIPES J.

This is an action on a contract for a 5 per cent. commission for the sale, by the plaintiff, of berry crates and boxes, the product of the manufacture of the defendant. The first cause of action alleges that the defendant was engaged in the manufacture, construction, and sale of various kinds of berry crates, and that it was desirous of selling them, especially to the Apple Growers' Association at Hood River, Or., and that, on the 5th day of March, 1920, the defendant entered into an agreement with the plaintiff whereby the defendant employed the plaintiff to sell the said berry crates and boxes to the public, and particularly to the said Apple Growers' Association, in carload lots, f. o b. Raymond, Wash., where the defendant had its manufacturing plant, for 30 cents per standard pint crate, made up and filled with standard deep pint berry boxes, plus 1 cent. per crate for branding; that defendant promised to pay to plaintiff a commission of 5 per cent. on all of the said business for which plaintiff secured orders; that defendant agreed with plaintiff that, if plaintiff should sell the said standard pint crates, made up and filled with standard deep pint berry boxes, at any advance price over the price above set out, defendant would pay plaintiff, over, above, and separate from the said 5 per cent. commission one-half of the said advance. It is alleged that the plaintiff accepted the employment and made a sale of 60,000 standard deep pint crates to the Apple Growers' Association, at the price of 30 1/4 cents per filled crate. It is alleged that the 5 per cent. commission amounted to $930 on the said sale, and that the plaintiff was entitled to $75 for one-half the advanced price over 30 cents, which is stated to be $75.

The contract with the Apple Growers' Association, which is marked Exhibit A of the complaint, provides that the association had the option to buy an additional 20,000 of said crates on the same terms. Looking at Exhibit A, we find that the contract with the Apple Growers' Association provides:

"* * * That the second party [the association] shall have a right to notify the first party [the defendant] in writing on or before May 5, 1920, that they desire an additional 20,000 crates filled with berry boxes and it is understood that, if the first party will ship to the second party 20,000 additional crates, or any part of 20,000 that may be ordered on or before May 5, 1920, said shipments to be made by the first party to the second party on or before June 1, 1920."

The complaint alleges that plaintiff has performed all of the conditions by him to be performed, and has demanded of the defendant that he pay plaintiff the sum earned by him, which is alleged to be $1,265. It is further alleged in the complaint that $200 is a reasonable sum for attorney's fees for bringing the action. This contract is denied.

A second cause of action alleges an employment to sell boxes to the Portland Manufacturing Company, upon an agreement to pay the plaintiff any amount that plaintiff should demand between the sums of $50 and $100. It is alleged that a sale was made to the Portland Manufacturing Company, and plaintiff demanded for his services the sum of $75, and $10 as attorney's fee for that cause of action, which was alleged to be reasonable.

Except that defendant was engaged in the manufacture of berry boxes, all of the allegations in the second cause of action are denied. The defendant then pleads as a counterclaim that it advanced to the plaintiff $977.44, at plaintiff's request, with a promise to repay the same, which, it is alleged, he has failed to do, and alleges $200 to be a reasonable sum as attorney's fees for defending the action and making the counterclaim, and the defendant asks judgment for those sums.

The reply put in issue the allegations of the counterclaim. A trial was had on these issues, and a verdict rendered by the jury as follows:

"We, the jury, having been first duly and regularly impaneled and sworn to try the above cause well and truly, do hereby find for the plaintiff and against the defendant, and assess the damages in the first cause of action at $1,465, and in the second cause of action at $85."

The verdict was received and filed, and a judgment rendered thereon for the sums mentioned in the verdict, and for interest thereon at 6 per cent. per annum, from the 1st day of July 1920. From this judgment the defendant appeals.

The fourth assignment of error is that the court erred in receiving the verdict, and the argument in support thereof proceeds upon the proposition that there was no evidence to support the verdict in the case. There was no motion for a nonsuit, or for a directed verdict, or for a new trial, and no ruling of the court below upon the question of the sufficiency of the evidence to support the verdict.

There were three other assignments of error, the first of which is that the court erred in not permitting the defendant's witness J. W. Kleeb to testify as outlined in exception No. 1, and that the court erred in striking out the testimony of the said witness as so outlined. That assignment will be noticed further in the opinion. The other two assignments of error will not be considered, as the decision upon the first will be decisive of the case on the counterclaim.

The verdict for $1,465 on the first cause of action either includes the $200 attorney's fee prayed for in the complaint or it is in excess of the amount prayed for. The prayer of the complaint is for a judgment for $1,265, and for $200. In either case, the verdict is wrong on its face.

We can find no law authorizing the allowance of an attorney's fee in cases like this one. We are referred to section 6799, Or. L., as authority for this allowance. But that section is part of an act relating to the payment of wages by...