Fisk v. Henarie

• Court: Supreme Court of Oregon
• Writing for the Court: [14 Or. 31] THAYER, J.
• Citation: 13 P. 193,14 Or. 29
• Parties: FISK v. HENARIE and others.
• Decision Date: 20 October 1886

13 P. 193

14 Or. 29

FISK
v.
HENARIE and others.

Supreme Court of Oregon

October 20, 1886

Appeal from circuit court, Multnomah county.

Action on contract. Judgment for defendants. Plaintiff appeals.

H.Y. Thompson, Geo. H. Durham, and Geo. H. Williams, for appellant.

[14 Or. 30] James K. Kelly and W.B. Gilbert, for respondents.

[14 Or. 31] THAYER, J.

The appellant commenced an action in the court below to recover $60,000, alleged to have been earned by him as a broker in procuring a purchaser of certain lands under a contract with certain of the respondents. The case has been twice tried in the lower court, and twice appealed to this court. Upon the first trial certain letters were offered in evidence by the appellant, which the circuit judge excluded, and which were claimed to establish the contract upon which the action was brought. Judgment having been rendered against the appellant therein, he brought an appeal to this court, and it was reversed, and the case remanded for a new trial. Upon said new trial the appellant obtained a verdict in his favor against the respondents. In entitling the verdict, the jury included the name of Peter Donohue, though he was dead at the time, and his executors had been made defendants in the action. Soon after the verdict was rendered the respondents filed a motion for judgment notwithstanding the verdict, and on the next day filed another motion for a new trial. The appellant, during the same time, filed a motion for judgment upon the verdict against all the defendants except the executors of said Peter Donohue. They were left out of the motion, for the reason, I presume, that the verdict was rendered against Donohue, and not against them, as before mentioned. The court [14 Or. 32] heard the said motions, and thereupon denied the motion for judgment upon the verdict, granted the motion for judgment notwithstanding the verdict, and said nothing about the one for a new trial. From the judgment notwithstanding the verdict this appeal was brought.

Among the grounds of error specified in the notice of appeal is "error of the court in refusing to allow the motion of the plaintiff for a judgment upon the verdict," and this review necessarily involves an examination as to the correctness of that ruling. The grounds upon which the circuit court granted the motion for judgment notwithstanding the verdict must have been a supposed defectiveness of the complaint. The counsel for the respondent endeavored at the hearing to show that it was entirely insufficient, and to uphold the decision of the court for that reason; but this court, at the former hearing before referred to, passed upon the sufficiency of this complaint, and held that it was...