Hannan v. Greenfield

• Decision Date: 13 November 1899
• Citation: 36 Or. 97,58 P. 888
• Parties: HANNAN v. GREENFIELD.
• Court: Oregon Supreme Court

58 P. 888

36 Or. 97

HANNAN v. GREENFIELD.

Supreme Court of Oregon

November 13, 1899

Appeal from circuit court, Multnomah county; Loyal B. Stearns Judge.

Action by Edward Hannan against J.R. Greenfield and another. Judgment for plaintiff, and defendant Greenfield appeals. Reversed.

This is an action to recover compensation for services alleged to have been performed by plaintiff as canvassing agent for defendants. It is stated, in substance, in the complaint that at all the times therein mentioned the defendants, J.R Greenfield and L.E. Woodworth, were partners, and engaged in business under the name of the Pacific Coast Home-Supply Association; that about November 28, 1894, defendants entered into a contract with plaintiff, whereby he was appointed their agent, in pursuance of which he solicited subscriptions for membership in said association, for which they agreed to pay him 40 per cent. of the amount secured on account thereof; and it was stipulated that, if the commissions so received did not equal four dollars per day of eight hours they would pay him, in addition thereto, sufficient to make up that amount. It is then alleged as follows: "(3) That plaintiff entered the employ of said association on or about the 28th of November, 1894, as canvassing agent and solicitor, as provided in the aforesaid contract, and that plaintiff kept and performed on his part all the conditions of said contract. (4) That the said commissions of said subscriptions taken by this plaintiff as solicitor as aforesaid did not amount to the sum of $4 per day. (5) That there is now due plaintiff for wages and services, as aforesaid, in accordance with the conditions of said contract, over and above all payments and set-offs, the sum of $268.40, of which $78 is for commissions as aforesaid." It is then averred, in substance, that said sum of $268.40 became due December 20, 1895, and that plaintiff is entitled to interest thereon at the rate of 8 per cent. per annum from that date, for which he prayed judgment. The defendant Woodworth, not having been personally served with the summons, made no appearance, but Greenfield filed an answer denying each allegation of the complaint, and a trial being had resulted in a joint judgment against the defendants and a personal judgment against Greenfield for the amount demanded, from which he appeals.

A.L. Veazie, for appellant.

J.C. Leasure, for respondent.

MOORE J. (after stating the facts).

It is contended by defendants' counsel that the court erred in permitting plaintiff, over their objection and exception, to testify concerning any sum that might be due him on account of commissions. The plaintiff, in answer to the question, "How much is due you for commissions under your contract?" said: "I took 158 memberships at $7 each, which would make $1,106. I was to have 40 per cent. commission on all memberships, which would make $442.40. Of that amount I received $371.55, making a balance due me on commissions of $70.85. I worked 160 days at $4 per day, making $640, less $442.40, amount of commissions, leaves $197.60 due me over and above commissions. Add to this $70.85 still unpaid on commissions, makes $268.45." An examination of the complaint will show that the cause of action is founded upon the alleged breach of the agreement to pay $4 per day for the service performed. It is intimated therein, however, that $78 of the amount demanded is due for commissions, but this averment is a statement of a conclusion of law without the allegation of any facts upon which to predicate it. The complaint contains no allegation respecting the number of members secured, or the amount received by plaintiff on account thereof, from which it could be inferred that $78, or any other sum, was due him.

It is insisted by plaintiff's counsel that, notwithstanding the complaint might have been vulnerable to a demurrer, if one had been interposed, the defect was cured by the verdict. The rule is well settled in this state that a general verdict will cure a defective statement in a pleading, but will not aid one from which a material averment is omitted. Weiner v. Lee Shing, 12 Or. 276, 7 P. 111; Bingham v. Kern, 18 Or. 199, 23 P. 182. "The extent and principle of the rule of aider by verdict," says Mr. Justice Bean in Booth v. Moody, 30 Or. 222, 46 P. 884, "is that whenever the complaint contains terms sufficiently general to comprehend a matter so essential and necessary to be proved that, had it not been given in evidence, the jury could not have found the verdict, the want of a statement of such matter in express terms will be cured by the verdict, because evidence of the fact would be the same whether the allegation of the complaint is complete or imperfect. But, if a material allegation going to the gist of the action is wholly omitted, it cannot be presumed that any evidence in reference to it was offered or allowed on the trial, and hence the pleading is not aided by the verdict." The complaint containing no statement of facts in relation to the amount due on account of commissions, a material averment, going to the gist of a part of the action, was omitted therefrom, and, there being no foundation upon which to predicate a part of the judgment, at least, the court erred in permitting plaintiff to testify in relation to the amount claimed to be due on account of such commissions.

It is contended that the court erred in refusing to strike out plaintiff's testimony concerning the cancellation of the contract under which the alleged service was performed. The contract in question shows that plaintiff agreed to devote his whole time for the term of one year from December 10 1894, to canvassing for memberships in said association, and to make up, after the expiration of the year, all time lost during such period. The testimony which the court, over defendants' exception, refused to strike out, is as follows: "Q. How long did you work? A. I went to work under that contract as soon as I could get my catalogues and book matter from the printers. I was delayed a couple of weeks. I put in 160 days, and worked until about the 16th or 17th of December, 1895. There is a clause in the contract which states that I was to make up all...