Harding v. Oregon-Idaho Co.
| Decision Date | 26 July 1910 |
| Citation | 110 P. 412,57 Or. 34 |
| Parties | HARDING v. OREGON-IDAHO CO. |
| Court | Oregon Supreme Court |
Appeal from Circuit Court, Douglas County; J.W. Hamilton, Judge.
Action by J. Harding against the Oregon-Idaho Company. From a judgment in favor of plaintiff, defendant appeals. Reversed and remanded for new trial.
This action was brought to recover the price of certain goods wares, and merchandise alleged to have been sold and delivered by plaintiff to the defendant, a corporation, and to other parties, between October 1, 1907, and February 29 1909, at defendant's special instance and request through L.R. Ferbrache, its president and manager, and also to recover money paid to other parties under like circumstances. It is alleged that defendant is a private corporation, organized and existing under the laws of this state, and engaged in the business of manufacturing lumber with its mill and principal place of business at Glendale, in Douglas county. The answer consists of a general denial. The cause was tried before a court without a jury, and at the conclusion of plaintiff's case defendant moved for an involuntary nonsuit, based principally upon the assertion that there was no competent evidence to connect the defendant with the several transactions upon which the right to recover is predicated. The motion was denied, whereupon defendant offered testimony, tending to show that it did not own or have any interest in the operation of the sawmill. But the court found that defendant and Ferbrache were jointly engaged in getting out sawlogs in the vicinity of Glendale, and in manufacturing lumber therefrom; that Ferbrache was the principal owner of the capital stock of the defendant corporation, and president thereof; that by consent and agreement of defendant Ferbrache was in control of its property and acting as its agent, and while so engaged had agreed with plaintiff that goods should be furnished by him to the employés of defendant and Ferbrache, which should be charged to and paid by the latter, out of the wages due such employés; that under such agreement, and upon special orders executed by Ferbrache, goods to the amount of $840.15 were furnished by plaintiff to Ferbrache and to his employés, which goods had not been paid for, although Ferbrache had withheld and retained from the wages, due the persons securing the goods, an amount exceeding the sum found to be due plaintiff. Judgment for that amount was accordingly entered in plaintiff's favor, from which defendant has appealed.
John K. Kollock (John K. Kollock and Albert Abraham, on the brief), for appellant.
A.N. Orcutt (Fullerton & Orcutt, on the brief), for respondent.
SLATER J. (after stating the facts as above).
We find in the record a motion by plaintiff to strike out defendant's bill of exceptions. The motion is based solely upon the fact that the bill of exceptions was presented to the trial judge and settled and allowed by him a few days after the appeal was perfected. No argument in support of the motion, either in typewritten brief, as required by the rules of this court, or orally at the hearing on the merits of the whole cause, has been furnished to this court. Under such circumstances we would perhaps be justified in summarily overruling the motion as having been abandoned or waived. We have however to same extent looked into the question suggested by the motion, but find no merit in it. The judgment was entered on February 4, 1909, notice of appeal was served on the 16th, and the appeal was perfected on the 26th. The bill of exceptions was presented to the trial judge on March 13th, allowed on the 17th, and the transcript filed with the clerk of this court on April 3, 1909.
This court has pursued a very liberal policy in construing the power of a trial court to settle and sign a bill of exceptions; the rule adopted being that, because the statute has fixed no time in which the bill should be presented and allowed, the matter is within the discretion of the trial judge, and, when exercised, his decision or action will not be disturbed. In Henrichsen v. Smith, 29 Or. 475, 42 P. 486, 44 P. 496, it was held that the failure of an appellant to submit his bill of exceptions within the time limited by the trial judge, after the expiration of the term does not prevent the judge from thereafter signing it, if otherwise proper. For a general review of the Oregon cases on this subject, see Hayes v. Clifford, 42 Or. 568, 72 P. 1. The service and filing of the notice of appeal, and the execution and service of the undertaking thereon, does not of itself deprive the lower court of jurisdiction or confer jurisdiction on this court; that is accomplished by filing within 30 days thereafter the transcript in the case with the clerk of this court. B. & C. Comp. § 553. Under the circumstances presented by the motion the judge had power to act, and, having acted, this court cannot disregard what was done. The motion is therefore overruled. Considering the motion for nonsuit, the rule is well-settled in this state that if there is any evidence, however slight, fairly susceptible of an inference or presumption, tending to establish the material averments of the complaint, it is the duty of the court to deny the motion. Currey v. Butcher, 37 Or. 380, 61 P. 631; Perkins v. McCullough, 36 Or. 146, 59 P. 182; Putnam v. Stalker, 50 Or. 212, 91 P. 363. But after a careful scrutiny of plaintiff's evidence we are unable to discover any competent evidence from which an inference may be drawn that the defendant owned any interest in the mill, or had anything to do with its operation, or that Ferbrache, by express or implied authority, was authorized to contract for defendant. Nor does the evidence tend to show that he attempted to bind the defendant in any transaction connected with this case. There is evidence sufficient to show that the defendant is a duly organized and existing corporation, invested with power to engage in the manufacture of lumber, but there is no direct evidence that the defendant owned any sawmill, or was engaged in the business of manufacturing lumber, or in any branch of business connected therewith; nor do we think there is any competent evidence from which an inference might be drawn that it was so engaged. It is admitted that the defendant owned considerable timber land in the vicinity of Glendale, and that one L.R. Ferbrache is the president of the defendant. Plaintiff, testifying in response to a question directed to him, to state whether he had had any agreement with the defendant through Ferbrache, president, to deliver goods from his store to the employés of the defendant, said that he had. This question assumes that the defendant was engaged in some business, and had employés, without any proof having been offered to establish such facts; but when plaintiff was asked to state what the agreement was, he said: "He (Ferbrache) told me to let the men have anything that they wanted, not to exceed what they had coming to them, and he would see that it was held out of their pay." This tends to show only an agreement personal to Ferbrache, and not with defendant; and, unless some other competent evidence were offered, tending to show that the defendant was operating some business under the management of Ferbrache, that the employés referred to were its employés, and that it received the benefit thereof, such an agreement would not bind the defendant. The merchandise furnished by plaintiff under this agreement was charged on his books of account to Ferbrache personally, and none of the items included in his demand were charged to the defendant. But it is sought to connect the defendant with these transactions, by attempting to show that defendant was the owner of the mill, and that the business conducted by Ferbrache was its business. For this purpose plaintiff testified that he saw where the name "Oregon-Idaho Company" had been painted on some of the machinery in the mill, and introduced a number of railroad waybills, showing that material and parts of machinery had been shipped to Glendale, apparently by the defendant as consignor, and...
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