Hoskins v. Scott

• Decision Date: 18 August 1908
• Parties: HOSKINS v. SCOTT.
• Court: Oregon Supreme Court

96 P. 1112

52 Or. 271

HOSKINS
v.
SCOTT.

Supreme Court of Oregon

August 18, 1908

Appeal from Circuit Court, Jackson County; H.K. Hanna, Judge.

Action by Joe Hoskins against William Scott. From a judgment for plaintiff, defendant appeals. Reversed, and new trial granted.

The action was for breach of defendant's contract to furnish plaintiff an engine and engineer to run a threshing machine previously purchased from defendant. The complaint, in addition to the allegations stated in the opinion, alleged that plaintiff notified defendant that he expected the latter to be ready with the engine and engineer at the opening of the threshing season, so that plaintiff could engage in threshing during the season.

[52 Or. 274] W.E. Phipps and Reames & Reames, for appellant.

Gus Newbury and Charles Prim, for respondent.

KING, C.

This is an appeal from a judgment in favor of plaintiff for $525 damages for an alleged failure on the part of defendant to furnish to plaintiff an engine and engineer with which to run a threshing machine in Jackson county, Or., during the year 1906.

The first error assigned is the overruling of the general demurrer to the complaint. The effect of the averments of the complaint is to allege an agreement, for a valuable consideration, on the part of the defendant, to furnish an engine and engineer to run plaintiff's machine purchased from him, reliance thereon by plaintiff, demand therefor, failure on the part of defendant to comply therewith, unsuccessful attempt by plaintiff to procure another engine and engineer, and the damages resulting from defendant's failure to do as agreed. It does not specifically assert that plaintiff had or could have procured contracts for threshing during the season of 1906, the year of his contemplated operations, nor that he tendered defendant the $5 per day agreed to be paid by plaintiff to defendant for the assistance of an engine and engineer, and the absence of such specific averments, it is urged, is fatal. But the complaint alleges that the plaintiff made the necessary arrangements, including procurement of the "complement of men necessary to begin and carry on successfully threshing during and for said season and making all necessary arrangements at the opening of said season," that he demanded of defendant that he furnish the engine and engineer according to their contract, which he neglected and refused to do, and sets out specifically the damages caused thereby. Sufficient is thus stated, if true, independent[52 Or. 275] of the question concerning the contracts, to entitle plaintiff to prove general damages, by reason of which no error was committed in overruling the demurrer. Sunnyside Land v. Bridge Ry. Co., 20 Or. 544, 26 P. 835.

The next error assigned relates to the admissibility of testimony tending to show what would have been earned by plaintiff's machine if it had been furnished the power agreed upon with which to operate the separator during the threshing season of 1906. The plaintiff, Hoskins, was asked to state the capacity of his machine, the price paid for such work, what he would have received, and the number of days threshing he would have procured during the season, to which inquiries objections were made as being incompetent, irrelevant, immaterial, and not within the issues. It is argued that this evidence should have been excluded, on the ground that no issue was made by the pleadings upon the points sought to be maintained thereby. The complaint states sufficient facts from which it may be reasonably inferred that plaintiff could have secured business for his machine sufficient to keep it in operation during the season; and as to the failure to allege a tender of the per diem for the engine and engineer, since there is nothing in the pleadings to indicate that such was a part of the contract, it will not be presumed that payment thereof should be made in advance. Hence it was unnecessary either to plead or prove it. The defects in the complaint, as in effect stated by the learned court at the trial, did not consist of a failure to allege sufficient facts, but in a defective statement thereof, subject to a motion to make more definite and certain, and waived by pleading over. Madden v. Welch, 48 Or. 199, 86 P. 2. Since the complaint is sufficient to support the verdict, it was ample for the admission of all testimony bearing upon the issues developed by it, and the special [52 Or. 276] damages averred are of the material issues, on account of which the testimony alluded to was properly admitted.

But it is maintained that no proof was offered showing that plaintiff, if furnished with an engine and engineer, either could or would have...