Ferguson v. Reiger

• Decision Date: 26 October 1903
• Citation: Ferguson v. Reiger, 43 Or. 505, 73 P. 1040 (Or. 1903)
• Parties: FERGUSON v. REIGER.
• Court: Oregon Supreme Court

73 P. 1040

43 Or. 505

FERGUSON v. REIGER.

Supreme Court of Oregon

October 26, 1903

Appeal from Circuit Court, Multnomah County; M.C. George, Judge.

Action by W. Ferguson against O.H. Reiger.From a judgment of the circuit court in favor of plaintiff rendered on appeal from a judgment in a justice's court, defendant appeals.Modified.

This is an action to recover money commenced in a justice's court in Multnomah county by filing a complaint of which the following is a copy: "Comes now the plaintiff, and for cause of action alleges: That at all the times mentioned in this complaint defendant is and was a resident of Portland district of Multnomah county, state of Oregon.That on or about the 17th day of February, 1901, at the special instance and urgent request and earnest solicitation of the defendantplaintiff was induced to purchase from the defendant a certain business enterprise, including the stock of merchandise being in the storeroom, and the fixtures on the west side of said storeroom, at No. 290 Morrison street, in the city of Portland, county of Multnomah, state of Oregon for the sum of $1,000, payable in the manner following: $200 in cash, $100 in certain corporation stock, and $700 to run on account, with the privilege on the part of the plaintiff of paying any part of the said $700 at any such time as not to draw too heavily from the said business, provided that all of said balance should be paid on or before the first of the year 1902.That subsequent to the time of the above agreement, or on or about the 17th day of March, 1901defendant demanded of plaintiff payment in full for the balance of $700, and defendant suggested that plaintiff could raise the money by mortgaging the said stock of merchandise and fixtures.This plaintiff refused to do, but complied with the further urgent demand of the defendant in this: that he(plaintiff) gave his promissory note in the sum of $500, with interest at 6 per cent., payable on or before the first of the year 1902, and the balance of $200 was to run, with the understanding that it, the said $200, was to be paid from the earnings of the business during the summer months of 1901 and it was agreed by and between the parties hereto that if at any time during the two months following the 17th day of February, 1901, plaintiff should discover that he was not adapted to the business above mentioned, though urged to undertake its management at the instance of the defendant conditionally, plaintiff should have the right to rescind the contract of purchase, and upon demand defendant should repay to plaintiff the sum of $300, being the sum paid into the business by plaintiff.Now, on the 17th day of April, 1901, plaintiff informed defendant that he wished to rescind his contract of purchase for the reason that he(plaintiff) was not adapted to the class of business conditionally purchased of the defendant, and plaintiff therefore demanded of the defendant repayment of the sum of $300, the surrender of the said promissory note of $500, and the cancellation of the balance of $200, the total of which was the full purchase price of the said business at the time plaintiff took possession of the same, and then and there plaintiff surrendered full possession of the business, merchandise, and fixtures aforesaid.That defendant delivered to plaintiff the said promissory note, and then and there promised and agreed to pay to plaintiff the sum of $250, this being a compromise sum to which defendant admitted plaintiff was entitled, and the defendant further agreed to cancel the remaining balance of $200, whereupon defendant was to and did take full and immediate possession of the business, merchandise, and fixtures aforesaid, and ever since said 17th day of April, 1901, has remained in full possession of the same in so far as this plaintiff is concerned.That subsequent to this last agreement, and prior to the commencement of this action, plaintiff demanded of the defendant the payment of the said sum of $250, but that defendant refused and still refuses to pay the same, or any part thereof.That there is now due and owing from the defendant to the plaintiff the sum of $250.Wherefore plaintiff demands judgment against the defendant in the sum of $250 and for his costs and disbursements in this action."A motion to strike out parts of this pleading on the ground that they were sham, frivolous, irrelevant, and redundant, having been overruled, an answer was filed, denying the allegations of the complaint, whereupon a trial was had resulting in a judgment from which an appeal was taken to the circuit court for said county, where the cause was retried without the intervention of a jury, and, the court having found that the plaintiff was entitled to recover the sum of $250, with interest from April 17, 1901, judgment was rendered on said findings, and the defendant appeals to this court.

A.C. Emmons, for appellant.

H. Denlinger and J.B. Easter, for respondent.

MOORE C.J.(after stating the facts).

It is contended by defendant's counsel that the complaint does not state facts sufficient to constitute a cause of action and that such defect was not waived by answering to the merits, nor cured by the verdict.Findings made by a court upon the facts in an action tried before it without the intervention of a jury are deemed a verdict (B. & C. Comp. § 159), and, though a verdict will not supply the omission to state some fact essential to the cause of action, it will cure all formal defects in a pleading, and establish every reasonable inference that can be drawn from the facts stated.Houghton v. Beck,9 Or. 325;David v. Waters,11 Or. 448, 5 P. 748;Bingham v. Kern,18 Or. 199, 23 P. 182."The extent and principle of the rule of aider by verdict," says Mr. Justice Bean in Booth v. Moody,30 Or. 222, 46 P. 884, "is that whenever the complaint contains terms sufficiently general to comprehend a matter so essential and necessary to be proved that, had it not...