L.C. Smith & Bros. Typewriter Co. v. McGeorge

• Decision Date: 08 September 1914
• Citation: 143 P. 905,72 Or. 523
• Parties: L. C. SMITH & BROS. TYPEWRITER CO. v. MCGEORGE.
• Court: Oregon Supreme Court

143 P. 905

72 Or. 523

L. C. SMITH & BROS. TYPEWRITER CO. v. MCGEORGE.

Supreme Court of Oregon

September 8, 1914

Appeal from Circuit Court, Coos County; L. T. Harris, Judge.

Action by the L. C. Smith & Bros. Typewriter Company, against C. F McGeorge. From an order setting aside a judgment for defendant, he appeals. Affirmed.

Robert O. Graves, of Marshfield, for appellant. J. O Stemmler, of Myrtle Point, A. J. Sherwood and L. A Liljeqvist, both of Coquille, Martin L. Pipes and S. B Huston, both of Portland (John F. Hall, of Marshfield, and A. H. Blatchley, of counsel), for respondent.

MOORE J.

This is an appeal by the defendant from an order setting aside a judgment rendered in his favor. The facts are that the plaintiff sold and delivered to the defendant typewriters and supplies therefor of the agreed value of $927; no part of which having been paid, this action was instituted to recover that sum, the complaint being in the usual form. The answer admitted most of the averments of the initiatory pleading, but denied that any sum was due from the defendant to the plaintiff. For further defenses it was averred, in effect, that on October 1, 1912, the plaintiff appointed the defendant its general selling agent in Coos and Curry counties, Or., for the term of one year, agreeing to pay him 25 per cent. commissions on all sales of typewriters made in that territory during the time stated, either by himself or P. D. Chamberlain; that the latter sold typewriters in those counties within the time specified, whereby the plaintiff received $7,283.20, on account of which the defendant was entitled to a commission of $1,820.81, less $927, the value of the goods and merchandise so received, whereby there remained due him $893.81, for which judgment was demanded. The reply put in issue the allegation of new matters in the answer, and the cause having been tried, the jury found for the defendant as he demanded. A judgment rendered therefor was, on motion of plaintiff's counsel, set aside and a new trial granted, and the order in this respect is brought up for review.

A final order affecting a substantial right and made in a proceeding after a judgment or decree is reviewable on appeal. An order setting aside a judgment and granting a new trial, for the purpose of being reviewed, shall be deemed a judgment or decree. L. O. L. § 548. Under the provisions of this statute, the right of a circuit court to set aside a judgment and grant a new trial can be exercised only when in the trial of a cause an error has been committed which is so prejudicial to the defeated party that the judgment rendered against him would, if allowed to remain in force, be reversed on appeal. When the trial court, within the time allowed, discovers that such a mistake of law has been made, it may sui sponte, or on motion, correct the error by setting aside the judgment and granting a new trial, thereby avoiding the necessity of and the expense that would be incurred by an...