Li Sai Cheuk v. Lee Lung

• Decision Date: 21 March 1916
• Parties: LI SAI CHEUK v. LEE LUNG.
• Court: Oregon Supreme Court

156 P. 254

79 Or. 563

LI SAI CHEUK v. LEE LUNG.

Supreme Court of Oregon

March 21, 1916

Department 1.

Appeal from Circuit Court, Multnomah County; Geo. N. Davis, judge.

Action by Li Sai Cheuk against Lee Lung, doing business under the firm name and style of the Nom King Low Company. From an order denying his motion to vacate a default judgment against him, defendant appeals. Reversed, with directions.

See also, 146 P. 94.

The complaint alleges, in substance, that during the year 1911 the Wing Chong Lung Company of Hong Kong, China, sold and delivered to defendant goods, wares, and merchandise of the value of $771, for which defendant agreed to pay, that by the laws of China an account remaining unpaid at the first of the following year draws interest at the rate of 1 per cent. per month, and that the interest for 1912 amounted to $92.52 that $31.69 was paid by defendant in 1912 and $67.90 in March, 1914, and that there is a balance unpaid of $765.75. Then follows this allegation:

"That prior to the commencement of this action the said Wing Chong Lung Company assigned and transferred said account to the plaintiff herein and constituted and appointed the plaintiff its attorney in fact to collect said account that plaintiff has demanded the payment of said sum of $765.75 from defendant, but said sum is still due and unpaid."

The sheriff's return upon the summons recites that it was served upon the defendant personally in Multnomah county Or., on May 27, 1914. On June 9, 1914, a default and judgment were entered in favor of plaintiff in accordance with the prayer of the complaint. Thereafter, on June 24th, defendant filed a motion to vacate the judgment upon the grounds that no summons was served upon him, and that the judgment was taken against him by surprise and his excusable neglect. The motion was supported by the following affidavit:

"State of Oregon, County of Multnomah--ss.:

"I Lee Lung, being first duly sworn, do depose and say: That I am the defendant in the above-entitled action, and that summons was never served upon me at any time in said action; that I was not within the state of Oregon on May 27, 1914, between 9 o'clock a. m. and 6 o'clock p. m. of that day, but was in the state of Washington during that time, and no summons whatsoever was served upon me. Between the 27th day of May, 1914, and the 9th day of June, 1914, I learned that plaintiff had begun action against me, and I entered into a negotiation with plaintiff for a settlement, claiming that the matter was a partnership affair and could only be settled by an accounting and settlement of my interest as a partner in plaintiff's assignor. I told plaintiff that since he had sued me in the court I should get a lawyer and make an appearance to protect myself, but he stated that I should not do that, because we would settle all right, and my rights as a partner be recognized, and that he would not take any default or move in the case until it was found out that a settlement could not be made and I was notified to that effect.

"While said negotiations were pending, and before I was notified that a settlement could not be made, plaintiff applied to the court for a judgment by default, and on June 9, 1914, the court rendered a judgment herein against me by default. That I was not aware thereof until June 20, 1914, when the sheriff called on me with an execution issued upon said judgment. Said judgment was rendered by surprise and excusable mistake, in that I relied upon the representations and promises of the plaintiff not to take any judgment while the negotiations for a settlement were pending.

"I have a good defense to the cause of action set forth in the complaint, in that I never purchased any goods, wares, or merchandise from Wing Chong Lung Company, other than certain withdrawals I made against my partnership interest in said Wing Chong Lung Company.

"I have a further and separate defense to the said cause of action as follows: The plaintiff's assignor. Wing Chong Lung Company, is a partnership in which Lee Hing Ching and Young Yick Chung, of Hong Kong, China, and Lee Mee Gin and Lee Foo, and this defendant, Lee Lung, of Portland, Oregon, and various other persons are partners; that this defendant is one of the partners of said firm and partnership; that from time to time during 1911 defendant made certain withdrawals of goods and wares from said partnership against the interest of this defendant in said partnership amounting to $500, and has made certain advancements to said partnership, and there has been no accounting or settlement of the partnership affairs of said partnership; that said withdrawals and advancements are the same transactions referred to in the complaint as sales of goods, wares, and merchandise and payments thereon.

"This affiant therefore prays that the judgment heretofore rendered on June 9, 1914. be vacated and set aside, and that this defendant be admitted to defend this action, and be allowed and permitted to file the answer attached hereto.

[Signed] Lee Lung.

"Subscribed and sworn to before me this 24th day of June, 1914.

"[Signed] E. B. Seabrook, Notary Public."

The plaintiff in opposition thereto filed the following affidavit:

"State of Oregon, County of Multnomah--ss.:

"I R. F. Peters, being first duly sworn, depose and say that I am one of the attorneys for the plaintiff; that the plaintiff left the state of Oregon upon the 11th day of June, 1914, and has not since been within said state, and is now at such a distance from the city of Portland that it is impossible to get his affidavit to be used upon the hearing of this motion; that during the time that negotiations were pending between the plaintiff and defendant the affiant was in constant communication with the plaintiff, and was present upon two...