Hammer v. Downing

• Decision Date: 08 April 1901
• Parties: HAMMER v. DOWNING et al.
• Court: Oregon Supreme Court

64 P. 651

39 Or. 504

HAMMER v. DOWNING et al.

Supreme Court of Oregon

April 8, 1901

Appeal from circuit court, Multnomah county.

Action by Thomas J. Hammer against F.O. Downing and another partners doing business under the firm name of Downing Hopkins & Co. From a judgment for plaintiff, defendants appeal. Reversed.

The plaintiff sues for money had and received, his complaint containing eight counts. The allegations are similar in all except the last, wherein no assignment of demand was necessary to be shown, as the transaction involved was with the plaintiff personally. We therefore give the first, only which is as follows, omitting formal averments: "That at various times between the 1st day of January, 1896, and the 1st day of June, 1897, at Portland, Oregon, W.A. Wells advanced and paid to defendants, as such partners, divers sums of money, altogether amounting to the sum of $1,200, to be used and invested by them in the purchase and sale of grain, namely, wheat, for him and on his account, in the board of trade of the city of Chicago, state of Illinois, at said time, less their commission on such purchase and sale. The defendants did not purchase nor sell any wheat or other grain during said period, or at any other time, for or on account of said W.A. Wells, in said board of trade or elsewhere, or otherwise use or invest said sums aggregating said amount of $1,200, or any part thereof, for or on account of said W.A. Wells, or earn or become entitled to any commission whatsoever." Then follow allegations of the assignment of the claim, demand, and nonpayment. By leave of the court the complaint was amended during the trial so as to conform to the facts proved, by showing that the dealings were in "grain or pork," instead of wheat, simply and the defendants were permitted to file an amended answer thereto, which runs as follows: "Deny that at various times between the 1st day of January, 1896, and the 1st day of June, 1897, or at other times, or ever, at Portland, Oregon, or elsewhere, W.A. Wells advanced or paid to defendants, as partners or otherwise, or to either of them, divers or any sums of money, either amounting to the sum of $1,200, or to any sum whatever, to be used or invested by defendants, or either of them, in the purchase or sale of grain of any kind soever, or pork, for said W.A. Wells, or on his account, in the board of trade of the city of Chicago, state of Illinois, or elsewhere, at said or any times, less their or any commissions on said alleged purchase or sale, or otherwise, or any other sum or sums whatever, and deny that during said period, or at any other time, these defendants, for or on account of said W.A. Wells, did not use and invest any and all sums of money received by them for and on account of said W.A. Wells, in accordance with the directions and instructions of said W.A. Wells with reference to the use and investment thereof;" and, continuing, defendants specifically deny all other allegations of the complaint, and interpose three separate defenses, setting up (1) that defendants paid Wells $982.50 prior to any assignment of his demand, which was received and accepted by him in full satisfaction of said alleged claim; (2) that, prior to any assignment of the demand, to wit, on or about April 30, 1897, the defendants and Wells had a mutual accounting touching the matters and things mentioned in the complaint, and that upon said accounting it was found there was nothing due Wells from defendants, and that, at other times prior to said assignment, other accountings were had, and that defendants paid to the said Wells the amounts found due upon such respective accountings; and (3) by way of set-off that, prior to the time of said alleged assignment, at the special instance and request of said Wells, and without consideration, defendants advanced and paid to Wells divers and sundry sums of money, amounting in the aggregate to $982.50, which said sums, and said aggregate sum of $982.50, were, and each of them was, received by Wells to and for the use and benefit of the defendants, and the same has not been repaid. The original answer did not set up these accountings and settlements, and hence it became necessary to amend the reply to meet that defense. As an affirmative defense to the set-off pleaded in the original answer, it was alleged in the reply "that all said averred sums of money received by said W.A. Wells from defendants, and every portion thereof, were during said period, and prior to the commencement of this action, fully returned and repaid to the defendants by the said W.A. Wells." To obviate the formal amendment of the reply, the court made and entered an order as follows: "Upon the filing of defendants' amended answer by leave of the court, setting up an additional separate defense by mutual accountings and settlements, being second and separate defense therein to each separate cause of action, and upon motion of plaintiff by his attorneys, it is ordered by the court that plaintiff have leave to amend his replication so as to deny each and every averment in said second separate defense to each separate cause of action, and allege that each and every of said averred accountings, settlements, and payments, and every item in any account considered on any such averred accounting, and the assent of plaintiff or any of his assignors thereto, was induced and procured by defendants through fraud and false representations on their part, and mistake on the part of plaintiff and his said assignors, and that plaintiff's replication shall be taken and deemed as so amended without filing any amended pleading or interlineation of his original replication." At the time of this entry the defendants objected to it upon the ground that the plaintiff could not enlarge his cause of action by the reply, and because it was apparent upon its face that the matter relied upon does not constitute a sufficient reply to the facts stated in the separate defense of mutual accountings and settlements, and is otherwise insufficient. The evidence offered in support of the several causes of action was very similar in its nature, except as it pertains to the last, which was concerning the dealings and transactions had with the plaintiff individually, and hence the statement may with propriety be confined to one or two only of such causes. The plaintiff was first called as a witness, and was shown certain statements of accounts, eight in number, marked, respectively, "AA," "X," "Q," "JJ," "KK," "NN," "EE," and "L," which were identified by him and then offered in evidence, whereupon defendants' counsel objected, assigning as a reason therefor that they comprised a large number of transactions other than money had and received by the defendants from the plaintiff and his assignors, and were immaterial and irrelevant. In answer to the objection, counsel for plaintiff stated that the exhibits were offered for the purpose of showing the amount of money paid into the hands of Downing, Hopkins & Co., and the amount paid by them to each of the parties, and the dates. The defendants then interposed a further objection that the accounts do not show money had and received, and that all of them, except that of the plaintiff individually, exhibit receipts of money far in excess of what is claimed by the complaint. A special exception was also noted to the excess, but, notwithstanding, they were admitted in evidence. Those of Wells and Reidt, the assignors of two of the demands of plaintiff, forming the basis of the first and fourth causes of action, are as follows:

Plfs. Ex. NN. W.A. Wells. ------------------------------------------------------------------- ------------------------------------------------------------------- 1896 1896 Nov. 23 To cash 300 Nov. 7 By cash 200 Dec. 24 To cash 200 14 By gain 25 29 To cash 20 17 By cash 75 1897 Dec. 4 By cash 200 Jan. 28 To puts 5 5 By cash 100 29 To calls 10 11 By cash 200 30 To tel. 30 24 By gain 25 Feb. 1 To 5 puts 5 20 30 By gain 7 50 2 To 5 calls 5 30 1897 3 To loss 687 50 Jan. 13 By cash 200 9 To 5 calls 5 50 27 By cash 200 29 By cash 100 10 To loss 37 50 29 By cash 100 Mch. 6 To S.L. Hayes 362 50 Feb. 1 By cash 100 20 To check 100 1 By cash 100 Apl. 30 To loss 231 25 4 By gain 18 75 Mch. 8 To loss 143 75 8 By gain 6 25 2113 80 13 By cash 200 20 By gain 6 25 Apl. 2 Error Cr. Apr. 2 137 50 Mch. 2 By gain 100 11 By cash 150 May 1 By bal. 05 ---- ---- 2113 80 ------------------------------------------------------------------- Plfs. Ex. AA. W. Reidt. ------------------------------------------------------------ ------------------------------------------------------------ 1896 1896 Nov. 14 To cash $107 50 Nov. 13 By cash $ 60 Nov. 14 By cash 30 16 To loss 22 50 Nov. 14 By gain 17 50 Nov. 17 By cash 22 50 19 To loss 20 Nov. 18 By gain 7 50 20 To loss 110 Nov. 18 By cash 30 25 To loss 250 Nov. 19 By cash 200 Nov. 21 By gain 56 25 25 To cash 100 Nov. 23 By gain 6 25 Nov. 24 By cash 180 Dec. 29 To loss 68 75 Dec. 29 By cash 68 75 ---- ---- ---- ---- 678 75 678 75 ------------------------------------------------------------

In connection with the Wells demand, eight receipts from Downing, Hopkins & Co., showing payments to them by Wells of eight several sums of...