Hargett v. Beardsley

• Decision Date: 13 August 1898
• Citation: 33 Or. 301,54 P. 203
• Parties: HARGETT v. BEARDSLEY.
• Court: Oregon Supreme Court

54 P. 203

33 Or. 301

HARGETT v. BEARDSLEY.

Supreme Court of Oregon

August 13, 1898

Appeal from circuit court, Umatilla county; Stephen A. Lowell Judge.

Action by J.D. Hargett against James S. Beardsley. Judgment for plaintiff. Defendant appeals. Affirmed.

A.D Stillman, for appellant.

T.G Hailey, for respondent.

WOLVERTON, J.

This is an action for money had and received, and the complaint alleges, in substance, that about February 15, 1896, the plaintiff was indebted to defendant in the sum of $1,500, for which he had given his promissory note and a mortgage to secure the same, and, being so indebted, plaintiff and defendant entered into a contract whereby defendant undertook and agreed to rent certain premises of a third party consisting of 370 acres, advance and pay the rent therefor furnish the necessary grain to seed the same, advance the necessary money for harvesting the crop and furnish the necessary sacks for sacking the same, and the plaintiff undertook and agreed upon his part to plow and summer-fallow the land during the spring and summer of 1896, and in the fall of the same year to sow the same to wheat, with the seed furnished by defendant, in a good and husband-like manner, cultivate and care for the crop produced until ready for harvesting, furnish the necessary assistance in harvesting the same, and out of the proceeds arising therefrom repay to the defendant all moneys advanced by him for seed, harvesting, sacking, and hauling the crop to market, together with the amount advanced for rent of the premises, and also pay out of such proceeds, if there should be sufficient for the purpose the sum of $1,500 due as aforesaid from the plaintiff to defendant. Then follow allegations touching the leasing of the premises by defendant in compliance with the contract; the plowing, summer-fallowing, sowing, and harvesting upon the part of plaintiff; and the further fulfillment of the terms and stipulations of the agreement as it regards both parties; and the amount of wheat produced and harvested. The complaint further avers that about September 1, 1897, the defendant, with the consent of plaintiff, and as his agent, sold and disposed of the wheat thus produced for the sum of $8,604.72, and was authorized by plaintiff to deduct therefrom the aggregate sum of $2,430 due him for moneys advanced for rent of land, harvesting expenses, sacks, hauling, etc., and the further sum of $1,522.50, the amount then due upon said promissory note, and that there remained after such deductions the sum of $4,252.22, which the defendant had and received to and for the use and benefit of the plaintiff. A demurrer was interposed to the complaint, and overruled by consent of the parties. At the trial objections were made and overruled to the introduction of plaintiff's evidence upon the ground that the complaint did not state facts sufficient to constitute a cause of action, and after a verdict for plaintiff the defendant moved for judgment non obstante, based upon the same ground, which was also overruled; and the action of the court in so disposing of the objections and motion constitutes the principal assignments of error.

It has been suggested that a demurrer to the sufficiency of the complaint having been overruled by consent of the parties precluded the defendant from raising the same question by motion for judgment non obstante. The statute gives the right to the defendant, when the complaint does not state a cause of action, to interpose such motion, but upon condition that the objection has not been taken by demurrer. Hill's Ann.Laws Or. § 266. A similar rule prevailed at common law, which was that "after judgment upon demurrer there can be no motion in arrest of judgment for any exception that may have been taken on arguing the demurrer." Order of Mutual Aid v. Paine, 122 Ill. 625, 628, 14 N.E. 42; Express Co. v. Pinckney, 29 Ill. 392; Coal Co v. Hood, 77 Ill. 68. But this is perhaps more a matter of technical practice than of substance, as the objection for the cause named is never waived, and may be urged for the first time in the appellate court. Evarts v. Steger, 5 Or. 147; Booth v. Moody, 30 Or. 222, 46 P. 884; Wilson v. Myrick, 26 Ill. 34. There is, however, reason for its support, in that, the court having once passed upon the identical question in disposing of the demurrer, it becomes the law of the case in the court below in the subsequent proceedings; and, while it could not be said that the court below erred in refusing to entertain a motion for judgment non obstante after it had passed adversely upon a demurrer going to the same question, yet, the record being before us upon appeal, we may inquire whether the complaint, so objected to at either stage of the proceedings, or here for the first time, is so defective as to render it insufficient to sustain the judgment. Railway Co. v. Hines (Ill.Sup.) 23 N.E. 1021. In this view it becomes unnecessary to inquire what was the effect of overruling the demurrer by consent, or to consider the objections made to...