Hill v. Wilson

Citation123 Or. 193,261 P. 422
PartiesHILL v. WILSON ET AL. [*]
Decision Date29 November 1927
CourtSupreme Court of Oregon

In Bank.

Appeal from Circuit Court, Union County; J. W. Knowles, Judge.

Action by Henry T. Hill against E. O. Wilson and another. Judgment for plaintiff, and defendants appeal. Modified and affirmed.

This is the third appeal. The opinion on the first appeal is reported in 108 Or. 621, 216 P. 751. The opinion in the second appeal is in 119 Or. 636, 250 P. 840. The second appeal has no bearing on the instant appeal. The opinion on the first appeal held in effect that the first cause of action in plaintiff's second amended complaint, on which the trial was conducted in the circuit court, was based on a broker's compensation for sale of real property. For other details, reference is made to the first opinion in this case. In addition to the defense in the first trial defendant pleaded the statute of limitations in the second trial from which this appeal was taken. More than six years expired after the rendition of the services by plaintiff and the filing of the sixth amended complaint on which the last trial was conducted in the circuit court. In the first trial plaintiff was awarded judgment for $3,500. In the last trial the judgment was for $2,500 only. After this cause was remanded on the first appeal, to wit, January 10, 1924 plaintiff filed a third amended complaint. The sixth amended complaint on which the second trial was conducted was filed February 17, 1925. The third and sixth complaints are very similar.

After the filing of the original complaint plaintiff sued out a writ of attachment. Certain property belonging to defendant Wilson was seized. Thereafter he gave a dissolution undertaking with his codefendant, United States Fidelity &amp Guaranty Company as surety. Thereupon the attached property was released and the attachment lien dissolved. The judgment entered on the verdict at the first trial omitted defendant Fidelity & Guaranty Company. No order was taken to sell the attached property. It is now claimed by the defendant Fidelity & Guaranty Company that plaintiff thereby waived its attachment lien and right to judgment against the defendant Fidelity & Guaranty Company. It is also claimed that the sixth amended complaint upon which the case was tried and judgment rendered against it is a departure from the original complaint, and, because of that departure, it is not liable. Defendants appeal, assigning 20 different alleged errors. These will be considered together.

Colon R. Eberhard, of La Grande (Cochran & Eberhard of La Grande, on the brief), for appellants.

R. J. Green and Eugene Ashwell, all of La Grande (Green & Hess, of La Grande, on the brief), for respondent.

COSHOW J. (after stating the facts as above).

The first, second, twelfth, eighteenth, and nineteenth assignments of error are predicated upon the plea of the statute of limitations constituting defendant's first, further, and separate answer. The contention of defendant is that, since the services for which plaintiff claims compensation were rendered in 1918, and the sixth amended complaint upon which the action was tried was filed in 1925, the statute of limitations had expired. Defendant alleged, in his first, further, and separate answer "that more than six years have elapsed and passed since the alleged transactions set forth in plaintiff's amended complaint. * * *" The plea is not sufficient. Six years might have elapsed since the services were rendered and the answer was filed, but not between the rendering of the services and the commencement of the action. Defendant contends that the sixth amended complaint is a departure from the second amended complaint upon which the former trial was based, and for that reason the statute continued to run until the sixth amended complaint was filed, but the answer does not allege that six years had expired between the time the services were rendered and the filing of the sixth amended complaint. It also appears in the evidence that the third amended complaint was filed January 10, 1924. The third amended complaint was filed for the purpose of meeting the objection to the second amended complaint. The third amended complaint was substantially the same as the sixth amended complaint. Conceding, without deciding, that the sixth amended complaint is a departure from the second amended complaint, and that a different cause of action is stated in the sixth amended complaint from that alleged in the second amended complaint, still the action on the sixth amended complaint was begun when the third amended complaint was filed. Without doubt the last-mentioned amended complaint was filed within the six-year period. For that reason the statute of limitations is not a defense. The court properly denied the motion for judgment by nonsuit and for a directed verdict. The court properly instructed the jury that the statute of limitations was not a defense, and properly refused to give the two instructions bearing on that subject requested by the defendant.

Defendant claims that plaintiff's complaint is based upon a quantum meruit, and that the proof showed a contract for a specific amount for said services. Defendant claims that instruction No. 1 given by the court was erroneous, because it instructed the jury that, where the services had been rendered, and the complaint is based upon the reasonable value thereof, evidence of a contract fixing the value is competent to prove the reasonable value of such services. This instruction correctly stated the law. Inland Construction Co. v. Pendleton, 116 Or. 668, 674, 242 P. 842; West v. Eley, 39 Or. 461, 65 P. 798.

Defendant complains of instruction No. 2 on the ground that it is not within the issues joined by the pleadings. It is within the evidence, however, and is closely related to the controversy between the parties as framed by the pleadings. The instruction properly states the law, and was not prejudicial to defendant. It was not error to give the instruction.

Instruction No. 3 was also properly given. There was evidence based upon the complaint that plaintiff had loaned to defendant Wilson, and expended at his request money which amounted to $1,568.35. That loan is the basis for plaintiff's second cause of action.

Instructions 4 to 8, inclusive, are complained of by defendant on the ground that the court was placing special stress upon the evidence regarding the services rendered. The complaint is based upon five different items disconnected. Instructions Nos. 4 to 8, inclusive, informed the jury that, if it found from the evidence that these services were rendered at defendant Wilson's request, plaintiff was entitled to recover from defendant the reasonable value thereof. These five instructions complained of are similar. The only difference is the particular item mentioned. The court did not stress the evidence, but mentioned each item separately, because they are so alleged in the complaint and were separated in the evidence. A special verdict was requested fixing the value of each item. This fact makes those five instructions appropriate.

Instruction No. 9 was to the effect that, if plaintiff was entitled to recover for said services, he was entitled to recover interest...

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18 cases
  • State v. Deal
    • United States
    • Supreme Court of Oregon
    • 27 Junio 1951
    ...Printing Industry of Portland v. Banks, 150 Or. 554, 46 P.2d 596, which expressly overruled what was said to the contrary in Hill v. Wilson, 123 Or. 193, 261 P. 422, and reestablished the doctrine of Fiore v. Ladd, 29 Or. 528, 46 P. 144, 145, that when 'a verdict has been returned by a jury......
  • City of Portland ex rel. Donohue & Fleskes Corp. v. Hoffman Const. Co., 403-515
    • United States
    • Supreme Court of Oregon
    • 5 Septiembre 1979
    ...amounts due in quantum meruit from the date the subcontract was wrongfully terminated. This contention is correct. In Hill v. Wilson, 123 Or. 193, 199, 261 P. 422 (1927), an action seeking quantum meruit recovery for services rendered, we held that the pay for the services was due when the ......
  • Parsons v. Henry, 35798
    • United States
    • Court of Appeals of Oregon
    • 23 Noviembre 1983
    ...recovers on a quantum meruit theory, he is entitled to interest from the date the contract was wrongfully terminated. Hill v. Wilson, 123 Or. 193, 199, 261 P. 422 (1927), held that, in a quantum meruit recovery for services, payment is due when the services are rendered. In the present acti......
  • Printing Industry of Portland v. Banks
    • United States
    • Supreme Court of Oregon
    • 2 Julio 1935
    ...the wisdom of the statutory rule and the necessity for its observance by the courts and not as grounds for its ruling. In Hill v. Wilson, 123 Or. 193, 261 P. 422, 425, was an action to recover the reasonable value of services rendered, the court added interest to the principal sum although ......
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