Lancaster Tire & Rubber Co. v. McGraw

• Decision Date: 23 February 1921
• Parties: LANCASTER TIRE & RUBBER CO. v. MCGRAW.
• Court: Oregon Supreme Court

195 P. 815

99 Or. 406

LANCASTER TIRE & RUBBER CO. v. MCGRAW.

Supreme Court of Oregon

February 23, 1921

In banc.

Appeal from Circuit Court, Multnomah County; W. N. Gatens, Judge.

Action by the Lancaster Tire & Rubber Company against M. L. McGraw. Judgment for defendant, and plaintiff appeals. Affirmed.

This is an action at law to recover money. Upon stipulation of the parties, it was tried by the court without a jury. The substance of the complaint is that during August and September, 1918, plaintiff sold and delivered to defendant certain automobile tires and a tube at the agreed price of $357.98, of which $7.50 has been paid, leaving a balance of $350.48 unpaid, for which judgment is asked. The answer consists of a general denial. Upon the trial there was a judgment for defendant, from which plaintiff appeals.

Chas J. Schnabel and J. B. Ofner, both of Portland, for appellant.

Ralph A. Coan, of Portland, for respondent.

BENSON J.

The assignments of error challenge the sufficiency of the findings of fact and suggest, also, that such findings are contrary to the weight of the evidence. As to the latter, it is enough to say that this court cannot concern itself with the weight of the evidence, for if there is any substantial evidence to support a finding, we are bound thereby.

The serious contention of the plaintiff is that the so-called findings of fact are not statements of fact at all, but mere conclusions of law. If this contention is justified, it requires no citation of authority to reach the further conclusion that such attempted findings cannot sustain a judgment based thereon. The essential finding is as follows:

"That plaintiff claims in its complaint filed herein to have sold certain automobile tires and an inner tube to the defendant during the months of August and September, 1918 for the agreed price of $357.98, and this court finds that no such sale took place and that the automobile tires and one inner tube claimed to have been sold to the defendant were not purchased by the defendant nor was any part thereof purchased by the defendant herein."

The testimony offered by the plaintiff is to the effect that plaintiff's salesman solicited the defendant to purchase automobile tires from plaintiff, explaining to the prospective purchaser that, while plaintiff did not sell direct to individuals, but to corporations, or large business concerns, they would sell the tires to him, and bill them to the corporation of which defendant was an officer, thereby enabling him to secure the liberal discounts which were granted such larger concerns; that with that understanding defendant purchased four tires for an automobile belonging to the foreman of the Centralia Mining Company of which defendant was president and four tires for an automobile belonging to the defendant...