Houser v. West

• Decision Date: 10 June 1901
• Citation: 39 Or. 392,65 P. 82
• Parties: HOUSER v. WEST et al. [1]
• Court: Oregon Supreme Court

65 P. 82

39 Or. 392

HOUSER v. WEST et al. ^[1]

Supreme Court of Oregon

June 10, 1901

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

Action by Zoeth Houser against Peter West and others. From a judgment in favor of plaintiff, defendants appeal. Affirmed.

This action was originally instituted to recover upon a bond given to the plaintiff, as sheriff, by defendant and his sureties to indemnify him against any liability that he might incur in selling two stacks of wheat hay at the request and by the direction of defendant, under an execution issued by his direction against the property of Charles Campbell. After levy, Campbell's wife claimed the property; whereupon plaintiff demanded indemnity, and the bond sued on was eventually given. The property was sold pursuant to the execution, and the proceeds paid to defendant. Subsequently Mrs. Campbell sued the plaintiff, and recovered judgment for the value of the property, which he satisfied, and this action is prosecuted for his reimbursement. Three trials of the cause have been had. At or prior to the second, the action was dismissed as to the sureties, and left to proceed against West, who denied that the levy was made in pursuance of his direction, plaintiff's allegations of his refusal to sell unless indemnified, the agreement to indemnify, the giving of the undertaking, and the conditions set out. And as a separate defense, he avers that he directed the plaintiff to levy upon two certain stacks of wheat hay upon the W. 1/2 of the N.W. 1/4 of section 14; that the plaintiff levied thereon in accordance with instructions, and sold them under the writ,--all prior to the giving of the undertaking, which, when executed, was without consideration and void. The reply admits the sale of the property before the execution of the undertaking, but alleges that West, at the request of the plaintiff for indemnity, first deposited county scrip therefor, but subsequently withdrew it, and gave the undertaking in its stead.

M.A. Butler, for respondent.

WOLVERTON J. (after stating the facts).

The errors relied upon for reversal are four in number: (1) The admission of evidence having a tendency to establish prior and contemporaneous agreements between the parties to the action; (2) the overruling of the appellant's motion for an instruction to the jury to return a verdict for him; (3) the overruling of his motion for a new trial; and (4) the overruling of his motion for judgment in his favor notwithstanding the verdict.

In the course of the trial much testimony was offered by the plaintiff, and admitted over objection, detailing circumstances and transactions leading up to the execution of the bond, from which it was elicited that, upon demand therefor, West deposited some county scrip with plaintiff under an agreement that the same should be held as security against liability, but subsequently took it up and substituted the bond. The objection to this testimony now insisted upon is that it details the conversations and negotiations had leading up to the giving of...