Hall v. Brown

• Decision Date: 20 December 1921
• Citation: 102 Or. 389,202 P. 719
• Parties: HALL v. BROWN.
• Court: Oregon Supreme Court

202 P. 719

102 Or. 389

HALL v. BROWN.

Supreme Court of Oregon

December 20, 1921

Appeal from Circuit Court, Harney County; Dalton Biggs, Judge.

Action by Milton S. Hall against W.W. Brown. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Biggs & Biggs, of Prineville, and F.E. Swope, of Burns, for appellant.

George S. Sizemore and C.A. Sweek, both of Burns, for respondent.

BURNETT C.J.

By agreement of the parties this case was submitted on the record and brief for the defendant and without brief on the part of the plaintiff. The parties are in substantial accord that about March 1, 1915, the defendant leased to the plaintiff for one year a 40-acre tract of land in Harney county, whereby the plaintiff was to plow and seed the land and receive all of the crop raised thereon during the year and that the defendant was to furnish the teams necessary for the work. The plaintiff avers that during said month of March, 1915, he plowed and planted 20 acres of the tract to oats, and about April 1, 1915, the defendant with force ousted him from the possession of the land, destroyed his growing crop, and prevented him from plowing and planting the remainder of the tract. The plaintiff claims to have expended a total of $237 for seed and labor. Concluding his complaint, he says that--

"By reason of the wrongful acts of defendant, as herein complained of, plaintiff's growing crop was lost; also the money he had invested in seed grain, as well as his labor in plowing, preparing the seed bed, and planting his crop. By reason whereof, plaintiff has been and is damaged in the sum of $1,000."

All the allegations of the complaint are denied by the answer, except the leasing. The substance of the answer is that after the plaintiff had plowed, harrowed, and seeded approximately 18 acres, the contract was rescinded by mutual agreement of the parties, in consideration of the defendant's agreeing to pay the plaintiff the reasonable value of his labor in plowing, harrowing, and seeding the land, together with the reasonable value of said seed, in pursuance of which the plaintiff surrendered the premises to the defendant and relinquished any claim he had to the crop grown on the land during the year. The answer claims that the defendant paid the plaintiff in full for all his work, labor and material. The new matter of this pleading is denied by the reply. The end of the litigation in the circuit court was a judgment for the plaintiff, from which the defendant appealed.

At the trial G.W. Johnson, testifying as a witness for the plaintiff, stated in substance that he farms in the neighborhood almost the same character of land as that in question; that he raised a crop of oats and rye on his land during 1915; and that his land was subirrigated from the hill only, during the spring run-off of snow. Asked if he had a memorandum showing the number of bushels that he thrashed off 20 acres that year, he said he had. He was told to refer to the memorandum and to state how many bushels of oats and how many of rye he thrashed that year. He answered, "There is 113 bushels of rye and 837 bushels of oats." Counsel for plaintiff then offered the memorandum in evidence. It was objected to by defendant's counsel on the ground that it was immaterial, and also for the further reason that it was inadmissible, as it was something the witness used for refreshing his memory. The objection was overruled and the memorandum was introduced in evidence; exception by the defendant being allowed. The memorandum is a statement made by the firm that thrashed grain for Johnson, and does not appear to have been made by Johnson or under his direction. In other words, it is an unverified statement of strangers to the action. Section 859, Or.L., is here set down:

"A witness is allowed to refresh his memory, respecting a fact, by anything written by himself, or under his direction, at the time when the fact occurred or immediately thereafter, or at any other time when the fact was fresh in his memory, and he knew that the same was correctly stated in the writing; but in either case the writing must be produced, and may be inspected by the adverse party, who may, if he choose, cross-examine the witness upon it, and may read it to the jury. So, also, a witness may testify from such a writing, though he retain no recollection of the particular facts; but such evidence shall be received with caution."

A witness having an independent recollection of a fact is not permitted to produce a memorandum; such a paper being used only for the purpose of refreshing his recollection. Moreover, the memorandum to be used must be one made by himself or under his direction, and this must appear in order to authenticate the paper. While the memorandum must be produced for the inspection of the adverse party, who may cross-examine the witness upon it and may read it to the jury, that privilege is not accorded to the party producing the witness. It was erroneous to admit the memorandum in evidence.

Continuing the witness Johnson testified as follows, according to the bill of exceptions:

"Q. Did you observe the manner in which this land had been cultivated and prepared and planted and seeded to crop by Mr. Hall? A. I judge it was pretty nearly the same, because some of it was new plowing and some of mine was new plowing.

"Q. Have you had several years' experience in cultivating that kind of land? A. Not at that time I didn't have because I hadn't been there but just a few years.

"Q. Did you observe Mr. Hall's method of cultivating, as compared with your own cultivation? A. I would judge at the time it was very near the same. I sowed my grain broadcast, and I presume he did; I don't know as to that.

"Q. Would you say that the seed bed was well prepared from its appearance, when it was planted? A. It seemed to be; yes. * * *

"Upon cross-examination, the witness testified...