Fisk v. Henarie

• Decision Date: 20 October 1886
• Citation: 13 P. 193,14 Or. 29
• Parties: FISK v. HENARIE and others.
• Court: Oregon Supreme Court

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.

James K. Kelly and W.B. Gilbert, for respondents.

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 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 not so defective but that it would uphold a verdict recovered thereon. Fisk v. Henarie, 13 Or. 156, 9 P. 322. The question was properly made at that time by the respondent's counsel, was a material question in the determination of that appeal, and this court now regards itself as bound by its decision then made. Besides, the court, after listening patiently to the counsel upon that point, is still of the same opinion. I think, therefore, that there were no grounds upon which the respondent's motion for judgment could properly have been granted.

It is claimed upon the part of this counsel that, unless judgment could have been recovered against all the defendants in the action, it could not be recovered against any of them. That used to be the rule, with a very few exceptions, in actions upon joint contracts; but the Civil Code did away with it. "If all the defendants have been served, judgment may be taken against any or either of them severally, when the plaintiff would be entitled to judgment against such defendant or defendants if the action had been against them or any of them alone," is the language of subdivision 3 of section 59 of the Code of this state. This I understand to be the test as to when a defendant or defendants in an action may be dropped, and judgment recovered against...