Kennedy v. Colt

• Decision Date: 20 May 1959
• Citation: 339 P.2d 450,216 Or. 647
• Parties: Ralph B. KENNEDY and Milton Culp, Respondents, v. May COLT, Appellant.
• Court: Oregon Supreme Court

Page 450

339 P.2d 450

216 Or. 647

Ralph B. KENNEDY and Milton Culp, Respondents, v. May COLT, Appellant.

Supreme Court of Oregon.

Argued and Submitted at Pendleton, May 5, 1959.

Decided May 20, 1959.

Charles R. Cater, La Grande, argued the cause and filed a brief for appellant.

C. Richard Neely, La Grande, argued the cause for respondents. With him on the brief were Helm & Neely, La Grande.

Before McALLISTER, C. J., and ROSSMAN, LUSK, WARNER, PERRY, CRAWFORD and MILLARD, JJ.

MILLARD, Justice pro tem.

This is an appeal by defendant from a judgment by the Circuit Court of Union County for $2,050 and costs, based upon a jury verdict in favor of plaintiffs, in an action of indemnity occasioned by the alleged misrepresentation of boundary lines having to do with a sale of timber.

Defendant first assigns as error the action of the trial court in overruling defendant's demurrer to plaintiffs' first amended complaint, in admitting any evidence in support thereof over defendant's objection, and in admitting any evidence in support of plaintiffs' second amended complaint over defendant's objection.

At the outset of the trial, plaintiffs, at the instigation of the court, sought to amend their complaint, the court indicating its consent, and the defendant also obtained consent to the amendment of her answer without objection by adding a defense. Early in the trial these amendments were made and, as a result, plaintiffs filed a second amended complaint, no error being thereby assigned on account of the allowance thereof. When an amended complaint is filed, the original ceases to become a part of the pleadings. Mumper v. Matthes, 186 Or. 357, 364, 206 P.2d 82, 86. Since the case was tried on the allegations of the second amended complaint which superseded the original, the action of the court in overruling defendant's demurrer to the first amended complaint, or in allowing evidence in support thereof, could not be prejudicial, and hence this portion of the assignment of error is without merit. In any event, defendant has, in assigning error with relation to the objection to the admission of evidence in support of either complaint, failed to comply with Rule 16 of this court by setting forth in haec verba the objection made and, hence, we have no way of knowing what the particular objection might be without searching the transcript and, hence, will not be considered here. For the reasons above stated, we find the first assignment without merit.

Defendant's next assignment of error is in two parts. In one portion, defendant assigns as error the denial by the trial court of defendant's motion for a directed verdict at the close of the evidence, stating that when the motion was made it was filed in writing as a part of defendant's instructions and supported by citation of authority, which citations were based upon the grounds set forth in a motion for nonsuit. The instruction is not set forth in haec verba as required by Rule 16 of this court, nor is it even pointed out in the transcript where it may be found, and for that reason this portion of the assignment will not be considered here. Even if we assume, however, that the grounds of the motion for directed verdict were the same as the motion for nonsuit, the result would be the same, as we shall next point out.

The other portion assigns as error the denial by the court of defendant's motion for involuntary nonsuit on the grounds, first, that the complaint upon which the case was tried failed to state facts sufficient to constitute a cause of action in indemnity; second, that the evidence specifically failed to show fraudulent misrepresentation as to the boundary lines in question; third, that plaintiffs had a fair chance to know what they were buying and were not prevented from doing so, being furnished with a legal description; fourth, that parol evidence was offered to vary or alter the terms of the written agreement between the parties; and fifth, that, since timber is an interest in realty, it could only be transferred by written agreement and, hence, plaintiffs were relying on an oral agreement, void under our statute of frauds.

With relation to the first part of defendant's motion, it appears that the second amended complaint alleges, in substance, that on or about June 18, 1948, plaintiffs entered into a contract for the purchase of timber on a ten-acre tract belonging to defendant, described as the east one-half of the east one-half of the southwest quarter of the northeast quarter of Section 14, Township 1 North, Range 38 EWM, and that subsequently plaintiffs, by oral contract, purchased an estimated ten-acre tract lying immediately west of the original ten-acre tract and commenced to log all of said property. This allegation was admitted by defendant, and at the trial there was never, as a matter of fact, any real question as to the purchase of both tracts by plaintiffs from defendant; in fact, defendant concedes in her brief that she owned both tracts.

It is next alleged that defendant and her agent, Sid Vaden, took plaintiffs to the property of the defendant and showed them the lines of her property as originally purchased by plaintiffs and the lines of the additional ten-acre tract purchased by plaintiffs, and on different occasions defendant and her agent represented to plaintiffs the lines of her property, and they were to log within said lines and that, relying upon said representations, the plaintiffs commenced logging within said area and paid defendant for the logs cut; that subsequent thereto claims were made against plaintiffs for logging timber from lands of third parties and plaintiffs advised defendant that inasmuch as she had instructed plaintiffs as to the location of her property lines they would hold her responsible, and defendant refused to settle said claims; that in April, 1954, Ida A. Mast filed a trespass action against plaintiffs, and the defense of the action was tendered to defendant and she refused said defense, and that it was necessary that plaintiffs defend; that Ida Mast offered to settle but defendant refused; that the action by Ida Mast against plaintiffs was tried and resulted in a verdict in her favor against plaintiffs in the sum of $2,913.12 and $67.33 costs; that plaintiffs were required to employ an attorney for the defense of said action and pay $700 as fee; that plaintiffs had been damaged in the sum of $2,913.12, costs in the sum of $67.33, and attorney's fees in the sum of $700, all as a direct result of the representations of defendant; that the damage sustained by plaintiffs was the direct and proximate result of plaintiffs logging within the area designated by defendant and the representation of defendant as to boundary lines as before alleged. Following that, plaintiffs pray for judgment for $3,680.45 and costs.

Defendant argues that such complaint does not state a cause of action for indemnity since indemnity arises out of contract, express or implied, and then only when there is a primary and secondary liability and the one seeking indemnity was, as to the injured third party, guilty of only constructive or passive wrong and the one against whom indemnity is sought was the active wrongdoer. Defendant further says there is no indemnity between joint tort-feasors in favor of the primary wrongdoer.

We agree that indemnity arises out of contract, express or implied. Since there is no claim of an express contract in this case, plaintiffs must rest their case on the theory of implied contract. We further agree that where parties are 'in pari delicto,' indemnity will not lie. As between other wrongdoers, we are of the opinion that, whether or not indemnity will lie, depends, not so much as to who was primarily or secondarily liable, as to who was primarily and secondarily responsible for the wrongful act.

'* * * 'Our law, however, does not in every case disallow an action by one wrongdoer against another to recover damages incurred in consequence of their joint offense. The rule is, 'in pari delicto potior est conditio defendentis.' If the parties are not equally criminal, the principal delinquent may be held responsible to his codelinquent for damages incurred by their joint offense. In respect to offenses in which is involved any moral delinquency or turpitude, all parties are deemed equally guilty, and courts will not inquire into their relative guilt. But where the offense is merely malum prohibitum, and is in no respect immoral, it is not against the policy of the law to inquire into the relative delinquency of the parties, and to administer justice between them, although both parties are wrongdoers. * * *.'' Inhabitants of Lowell v. Boston & L. R. Corp., 23 Pick., Mass. 24, 34 Am.Dec. 33; 38 A.L.R. 566, 567.

Since there is no real claim made here that plaintiffs deliberately trespassed, what then are the legal tests for determining whether or not a contract of indemnity will be implied?

'Where a person carefully and in good faith does an act which is not apparently illegal, at the request or under the express directions of another person, and such act causes an injury to the rights of third persons, an implied contract arises on the part of the person for whom the act is done, and who is primarily liable therefor, to indemnify the person doing the act against the natural consequences thereof.' 42 C.J.S. Indemnity § 20, p. 595, and cases cited.

See, also, Restatement of the Law, Restitution, 398, Sec. 90; City of Astoria v. Astoria & Columbia River R. Co., 67 Or. 538, 547, 136 P. 645, 49 L.R.A., N.S., 404; 38 A.L.R. 566.

'* * * But the operation of this rule against recourse is greatly circumscribed, with the result that one constructively liable for a tort is generally held entitled to indemnity from the actual wrongdoer, regardless of whether liability is imposed on the person seeking indemnity by statute or by rule of the common law, and irrespective of the existence of an express...