Foster v. Henderson

• Decision Date: 27 July 1896
• Citation: 45 P. 899,29 Or. 210
• Parties: FOSTER v. HENDERSON et al.
• Court: Oregon Supreme Court

45 P. 899

29 Or. 210

FOSTER v. HENDERSON et al.

Supreme Court of Oregon

July 27, 1896

Appeal from circuit court, Multnomah county; H. Hurley, Judge.

Action by J.M. Foster against C.M. Henderson & Co. There was a judgment for defendants, and plaintiff appeals. Affirmed.

A. King Wilson and M.L. Pipes, for appellant.

A.C Emmons and W.D. Fenton, for respondents.

BEAN, J.

This is an action at law to recover money. The complaint contains five counts or separate causes of action. In the first it is alleged that on or about the 21st day of February, 1893, the plaintiff was employed by the defendant as a commercial traveler for the period of one year, at the agreed compensation of $200 per month and traveling expenses; that he continued in such employment until the 28th of October, 1893, when the contract of hiring was terminated by the defendant in the manner provided therein; that, for such services and traveling expenses, the defendant became and was indebted to him in the sum of $2,746.74, no part of which has been paid except the sum of $2,491.85, leaving a balance of $254.89. For the second cause of action, it is alleged that on or about October 1, 1886, he was employed by the defendant as a commercial traveler, and was to receive for his services 6 per cent. on all bona fide sales made by him while in such employment; that between the 1st day of December, 1892, and the 21st of February, 1893, he sold for the defendant goods amounting, in the aggregate, to $26,662.60; that his commission thereon was $1,599.75, no part of which has been paid except the sum of $1,211.68 leaving a balance due him of $388.07. The other causes of action are not material to any question presented on this appeal. The answer of the defendant, after specifically denying the material allegations of the complaint, sets out a copy of the contract referred to in the first cause of action, the part thereof material to this case being as follows: "J.M. Foster hereby agrees to devote his entire time and ability for one year from the 20th day of February, 1893, to the 20th day of February, 1894, to the interests of C.M. Henderson & Co., under their direction, as a salesman, in consideration of the compensation hereinafter named. Said C.M. Henderson & Co. hereby agree to pay him $200 per month during said year, except the portion of said time that, through illness or any other cause, is not devoted to their interests although, if he sells $70,000 worth of leather goods for them during said time, then there is to be no reduction from said salary for loss of time. *** This agreement may be canceled by either party at any time by giving fifteen days' notice." And, for a further defense, alleged that the contract was canceled and terminated on October 1, 1893, in the manner provided therein, and that plaintiff had been paid in full the sums due him thereunder prior to the commencement of this action. As a defense to the second cause of action the answer sets out the defendant's version of the contract of October 1, 1886, the amount of sales made by the plaintiff thereunder, his compensation, and alleges that the same had been fully paid prior to the commencement of this action. Issue being joined, the cause came on regularly for trial; but, before a jury was called, the defendant was allowed by the court, over plaintiff's objection and exception, to amend its answer by alleging as a counterclaim that in settling with the plaintiff for the services rendered under the contract of October 1, 1886, it has overpaid him in the sum of $169.44. After this amendment was allowed, a reply was filed, and the trial proceeded without objection from the plaintiff, resulting in a verdict and judgment in favor of defendant for the sum of $1, from which he appeals, and alleges error of the trial court (1) in allowing the amended answer to be filed; (2) in overruling his objections to the reading by the defendant of the depositions of certain witnesses taken in the city of Chicago, under a commission issued by the clerk of the circuit court of Multnomah county; (3) in instructing the jury that under the written contract of February 21, 1893, plaintiff was not entitled to recover, in this action, compensation for any time which he lost through illness. Of these questions in their order.

1. No rule of law is better settled than that the ruling of a trial court in allowing or refusing an amendment of the character here under consideration will not be reversed on appeal unless it appears affirmatively that there was a plain abuse of discretion, to the material injury of some substantial right of the appellant. Henderson v Morris, 5 Or. 24; Baldock v. Atwood, 21 Or. 79, 26 P. 1058; Garrison v. Goodale, 23 Or. 307, 31 P. 709. There is no such showing in this case. The amendment was allowed before the trial, while there was yet ample opportunity to protect the interests of the plaintiff by a continuance if he was not then prepared to meet the allegations of the answer as amended; and, no doubt, an application for that purpose, if in furtherance of justice, would have been favorably considered by the trial court. But no such application was made, and it is not claimed on the hearing here that the plaintiff was in any way prejudiced on the merits by the allowance of the amendment. Nor is there any force in the contention that the amendment is such a departure from the original answer as to amount, in effect, to a new and wholly different defense. It is true, it sets up a...