Hirsch v. May
| Citation | 146 P. 831,75 Or. 403 |
| Parties | HIRSCH v. MAY. [d] |
| Decision Date | 09 March 1915 |
| Court | Supreme Court of Oregon |
Department 1.
Appeal from Circuit Court, Multnomah County; George N. Davis, Judge.
Action by Sanford Hirsch against Emanuel May. Judgment for plaintiff, and defendant appeals. Affirmed.
The amended complaint states:
"That heretofore the above-named plaintiff and defendant had mutual claims and accounts against each other, concerning which a dispute arose, and thereafter on or about the 1st day of April, 1913, in order to settle said dispute a balance was struck, at which time it was agreed that in settlement of all controversies and disputes between the plaintiff and defendant said balance as agreed upon, to be the sum of $530, which amount the plaintiff agreed to accept and the defendant agreed to pay to the plaintiff on demand; that demand has been made of the defendant for the payment of said sum of $530, and he has failed and neglected to pay the same or any part thereof, and the whole is now due and owing from the defendant to the plaintiff herein."
The pleading closes with a demand for judgment in the sum of $530 and for costs and disbursements. The defendant assailed this complaint by motion to make more definite and certain and by demurrer, both of which were overruled. He then filed what is termed in the abstract of record an answer and cross-bill in equity, which stated, "Comes now the defendant, and for answer to the amended complaint herein, pleads as follows," admitting all the allegations of the complaint except the legal conclusion that the balance named was due and owing from the defendant to the plaintiff.
Further answering the amended complaint, the defendant avers:
"That prior to April 1, 1913, the plaintiff claimed to hold certain claims and accounts against this defendant, as alleged in paragraph 1 of the amended complaint, the correctness of which this defendant disputed; that thereafter and about April 1, 1913, this defendant orally agreed, as alleged in paragraph 1 of said amended complaint, that, in settlement of all disputes between defendant and plaintiff concerning the purported claims and accounts of plaintiff against defendant aforementioned there was a balance in favor of the plaintiff of $530 which this defendant orally agreed to pay; that the plaintiff never in any manner or at any time gave or exhibited to defendant any counterpart or statement of his alleged claims and accounts against this defendant; but this defendant in agreeing to said balance depended upon plaintiff's oral statement of his alleged claims and accounts against this defendant; that a palpable and substantial error was made by plaintiff, and inadvertently acquiesced in by defendant, in the alleged claims and accounts of the plaintiff against this defendant; and that the striking of the balance in plaintiff's favor and the agreement thereto by this defendant, as alleged in paragraph 1 of the amended complaint, was due to said error in the legitimate claims and accounts claimed by plaintiff against this defendant, to the detriment of this defendant whereby and on account of which this defendant was induced to agree to the striking of the balance alleged in paragraph 1 of the amended complaint; that said error consisted of unwarranted and illegitimate overcharges against this defendant to the extent of, to wit, $500; and that, in order to secure a correction of the same, this defendant has repeatedly endeavored to secure from plaintiff a counterpart of the whole claims and accounts of plaintiff against this defendant as shown by the record herein."
The defendant's pleading continues in a recitation of his attacks above mentioned upon the amended complaint and the adverse rulings of the court upon them, and concludes with the allegation that he has no plain, speedy, adequate, or complete remedy at law. The substance of his prayer is that the proceedings at law be stayed, that the cause proceed as a suit in equity, that the proceedings at law be perpetually enjoined or allowed to continue according to the final decree to be made, that before the defendant be required to plead further the plaintiff furnish a complete itemized statement of the claims and accounts of the plaintiff against him, and for further relief.
The plaintiff filed simultaneously a motion to strike out the new matter, a demurrer to the answer, and a motion for judgment in his favor on the pleadings. Upon consideration of these motions and the demurrer, the court ended the whole matter by giving judgment on the pleadings in favor of the plaintiff and against the defendant for $530, together with the costs and disbursements of the action. The defendant appealed.
Julius Silvestone, of Portland, for appellant. A. Walter Wolf and F J. Lonergan, both of...
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...prescribed in the release of the disputed claim. Hodges Agency, Inc. v. Rees and Stover, 202 Or. 139, 272 P.2d 216 (1954); Hirsch v. May, 75 Or. 403, 146 P. 831 (1915). Thus this case may be viewed in one of two ways, and in both, the same result follows. It may be considered that by expres......
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