Johnston v. Fitzhugh
| Decision Date | 04 February 1919 |
| Citation | 91 Or. 247,178 P. 230 |
| Parties | JOHNSTON v. FITZHUGH. [a1] |
| Court | Oregon Supreme Court |
Department 1.
Appeal from Circuit Court, Lane County; G. F. Skipworth, Judge.
Action by C. D. Johnston against John R. Fitzhugh. From judgment for plaintiff, defendant appeals. Affirmed.
The plaintiff's grievance is thus stated in his complaint:
"That the said defendant is indebted to the plaintiff for work labor, and services rendered and performed by the plaintiff for the defendant at his special instance and request, on and between the 28th day of November, 1916, and the 1st day of February, 1917, at the agreed rate of $75 per month, in the sum of $157.50, and that the whole amount thereof became due and payable on the 1st day of February, 1917, no part of which has been paid, save and except that, between the dates aforesaid, the defendant paid to the plaintiff in cash and merchandise the sum of $13.44, leaving a balance of $144.06 due and owing the plaintiff of and from the defendant on account of such work, labor, and services so rendered and performed as aforesaid."
The answer denies the whole complaint. There was a verdict and judgment for the plaintiff, and the defendant appeals.
H. E Slattery, of Eugene, for appellant.
O. H Foster, of Eugene, for respondent.
It appears in evidence that the defendant traded for a store and its contents owned by the Quayle-Johnston Company in Eugene. He claimed at the trial that it was represented to him the stock would not amount in value to exceed $1,500; that it inventoried $2,600, and that he refused to take it at more than $1,500, so that the negotiations were prolonged for something like three months before the deal was closed although he took over the building and part of the goods when the inventory was finished. The plaintiff claims that about November 28, 1916, on receipt of the inventory, the defendant employed him at $75 per month to manage the business for him. The defendant denies all this. The deal transferring the concern was finally completed about January 25, 1917.
The first assignment of error is that the court rendered a judgment in favor of the plaintiff, on a complaint which does not state facts sufficient to constitute a cause of action. It is urged that the statement that the defendant is indebted to the plaintiff, and, further, that a certain balance is due and owing to the plaintiff from the defendant, are conclusions of law. It is contended also that the complaint does not aver that the defendant agreed to pay the plaintiff anything for his services, and that it does not aver their reasonable market value. The case of Bowen v. Emmerson, 3 Or. 452, is cited by the defendant in support of his contention. There the complaint only alleged that:
That case decided in effect that a breach of contract, whether express or implied, must be alleged by one who would recover on it, and is distinguished by the later case of Pioneer Hardware Co. v. Farrin, 55 Or. 590, 107 P. 456, where Mr. Chief Justice Moore, speaking for the court, said:
"It is doubtful if the decision in that case [Bowen v. Emmerson] is based on principle, for the rule is quite well settled that, where a sale and delivery of goods is alleged, and nothing is said in the pleading about the time of payment, it will be presumed that payment was to have been made on delivery."
Speaking also of the promise to pay, the opinion there contains this language:
The form of the complaint in the instant case is substantially like one approved in 18 Enc. Forms, 1065. It is asserted that the labor and services were rendered and performed by the plaintiff for the defendant at his special instance and request, during certain dates, at an agreed rate, amounting to a certain sum stated, no part of which has been paid except a certain other sum stated. The defendant had notice of the grounds of the plaintiff's complaint, sufficient at least after the verdict to sustain a judgment, no objection having been taken by demurrer or motion.
The next assignment is in substance that the court erred in striking out some testimony given by the defendant to the effect that Mr. Quayle told him, in the absence of the plaintiff, that the latter or "one of the boys" would have to stay in the store to look after the interests of the Quayle-Johnston Company, until the sale was finally consummated. No authority to Quayle thus to bind Johnston was shown, and hence, in the absence of the latter, the unauthorized declaration of Quayle could not be shown. The defendant claims as error that the court said, in the presence of the jury, that Quayle could not make a contract that would bind Johnston. The bill of exceptions, however, does not disclose that the defendant made any objection to this language of the court.
The principal attack upon the proceedings of the court is based upon the refusal of the trial judge to admit in evidence what a witness heard of one end of a telephone conversation alleged to have taken place between the defendant and Johnston. The witness was a bookkeeper employed by Fitzhugh in connection with the business he had purchased, and during the time the final settlement was still pending, who proposed to tell what he had heard Johnston say in a conversation over the telephone. He stated that he "heard Mr. Johnston call Mr. Fitzhugh's name, and that he was talking to Mr. Fitzhugh without any question." When asked to state what he heard Johnston say, the court sustained the objection that it was incompetent, irrelevant, and immaterial, and that the witness heard but one end of the conversation, giving as a ground therefor that:
The defendant excepted and stated that:
"We expect to show by this witness, in substance, the following conversation over the telephone: That Mr. Johnston in this conversation asked Mr. Fitzhugh to make a settlement and complete the transaction between them; that Mr. Quayle was gone; that Mr. Fitzhugh refused to acknowledge Mr. Johnston in the deal at all."
The objection was again urged to the offer and sustained. We deduce from a somewhat extended examination of the decisions that a telephone conversation, properly identified, may be introduced in evidence on the same ground as any other conversation, provided it is otherwise competent testimony. Another principle is that where a party installs in his place of business a telephone connected with a public system, he impliedly invites...
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Thomas v. Howser
...for the reasonable value of services. Sullivan et al. v. Carpenter, 184 Or. 485, 488--489, 199 P.2d 655 (1948); Johnson v. Fitzhugh, 91 Or. 247, 250, 178 P. 230 (1919). The complaint also alleged that upon the completion of these services plaintiff demanded payment of $7,060.34, 'which sum ......
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Hill v. Wilson
...that one requested another to render services. Pioneer Hardware Co. v. Farrin, 55 Or. 590, 593, 107 P. 456. See, also, Johnston v. Fitzhugh, 91 Or. 247, 178 P. 230. And request may sometimes be inferred from the beneficial nature of the consideration and the circumstances attending the tran......
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Grimes v. State
...sealed her doom, it was nonetheless a part of the warp and woof of the crime itself. It was clearly admissible. See Johnson v. Fitzhugh, 91 Or. 247, 178 P. 230, 232, wherein it was 'The objection to statements made over a telephone to an unseen party goes not so much to their competency as ......
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...a bystander to relate that part of the conversation which he heard, provided such statements are competent evidence. Johnston v. Fitzhugh, 91 Or. 247, 252, 178 P. 230; Sawyer v. Eaton (C. C. A.) 293 F. 898; A. C. R. Co. v. Robertson's Ex'r, 135 Va. 247, 261, 116 S. E. 476; Jamaica Pond Gara......