Gary Coast Agency, Inc. v. Lawrey

• Decision Date: 19 October 1921
• Parties: GARY COAST AGENCY, INC., v. LAWREY.
• Court: Oregon Supreme Court

201 P. 214

101 Or. 623

GARY COAST AGENCY, INC., v. LAWREY.

Supreme Court of Oregon

October 19, 1921

Department 1.

Appeal from Circuit Court, Marion County; George G. Bingham, Judge.

Action by the Gary Coast Agency, Incorporated, against Fred Lawrey. From judgment for defendant, plaintiff appeals. Affirmed.

This is an action brought by the plaintiff on a note for $233. After denying everything in the complaint except as stated in the answer, the defendant contends that the note was given in part payment of the initial installment demanded by the plaintiff as part of the purchase price of a motor truck. He says in substance that he purchased the truck from the plaintiff for the purpose, well known to the latter, of using it in the dray and transfer business operated by the defendant; that the plaintiff warranted the truck to be suitable for that purpose; that for the purpose of inducing the defendant to purchase the truck, the plaintiff represented that it was practically new, and had been run only for a short time; that the defendant relied on the representations and believed them to be true; that the plaintiff knew they were false, and made them to induce the defendant to purchase the truck, and with the intent and design to defraud the defendant out of the purchase price and that in fact the truck was old and worn and not suitable for the purpose for which it was bought. It is further stated that before the institution of the action the defendant tendered the truck to the plaintiff, assigning as a reason the misrepresentations already stated, but the plaintiff refused to receive it or to return the money paid therefor. The defendant demands judgment for all the money he has paid on the truck. The reply puts in issue material parts of the answer, and sets up a conditional sales contract for the purchase of the truck, the title of which was to remain in the plaintiff until all of the payments had been made. As to the $233 note, the reply avers in substance that it was for money loaned by the plaintiff to the defendant, and had nothing to do with the transaction concerning the sale of the truck. As a waiver of defenses against the note, it is averred in effect that the defendant took the truck, operated it, and paid two installments on the purchase price, with full knowledge of the alleged defects in the truck. A jury trial resulted in a verdict and a consequent judgment in favor of the defendant, for $475, and the plaintiff appeals.

Will H Masters, of Portland, for appellant.

Custer E. Ross, of Silverton, for respondent.

BURNETT C.J. (after stating the facts as above).

It is contended that the court changed the transcript of testimony so as to render futile the motion of the plaintiff to require the defendant to elect whether he was defending on the ground of fraud or breach of warranty. The bill of exceptions appearing in the record is to the effect that after the jury was impaneled, the attorney for plaintiff moved that the defendant state upon what theory he elected to proceed, and that the attorney for the defendant said, "This will be on the basis of a defense at law of fraud and deceit and breach of warranty." No ruling of the court was called for, and none was made. The contention is that the court was in error in permitting the bill of exceptions to show that the words "and breach of warranty" were used in the statement of the defendant's counsel. A procedure is set down in section 170, Or. L., for settling a bill of exceptions in case the judge and counsel do not agree as to the legitimate contents thereof, involving the calling of disinterested persons to make oath as to what actually occurred, etc. Nothing of the kind appears in the record here, and hence we must be bound by the bill of exceptions as sent up. Under the circumstances it imports absolute verity. The result is that the matter is to be determined here as to whether fraud was perpetrated, and as to whether there was a breach of warranty concerning the quality of the machine.

It is urged in the brief for the plaintiff that, "appellant [[defendant] cannot join a cause of action ex delicto with a cause of action ex contractu, because they are inconsistent," citing authorities. A fair sample of these precedents is Miller v. Hirschberg, 27 Or 522, 40 P. 506. The doctrine of that case is, that one cannot allege a tort and prove a mere breach of contract. The question of misjoinder was not discussed. The other precedents cited under that point are substantially to the same effect. Practically, the defendant relies upon both fraud and breach of warranty. It may well be said that a plaintiff cannot join tort and contract in the same action. The defendant, however, under the provision of section 73 Or. L., may interpose as a defense "a statement of any new matter constituting a defense or counterclaim, in ordinary and concise language, without repetition." Also, he "may set forth by answer as many counterclaims as he may have." Or . L. § 74. Of course, these different counterclaims must be consistent one with the other. They cannot be contradictory of each other. If it is possible, however, for both to be true, they both may be set up in defense.

Section 74 defines counterclaims, and requires that the defenses shall be separately stated. The defenses of fraud and breach...