Maxson v. Ashland Iron Works
| Decision Date | 11 September 1917 |
| Citation | 167 P. 271,85 Or. 345 |
| Parties | MAXSON v. ASHLAND IRON WORKS. |
| Court | Oregon Supreme Court |
Department 2.
Appeal from Circuit Court, Jackson County; F. M. Calkins, Judge.
On motion to retax costs. Granted.
For former opinion, see 166 P. 37.
F. J. Newman and T. W. Miles, both of Medford, for appellant. W. E. Crews, of Medford, for respondent.
This is a motion to retax costs. Though the plaintiff and the defendant appealed, the judgment was reversed on the ground that an error had been committed in receiving testimony given by the plaintiff tending to vary the terms of the exchange contract by showing that the word "possession" as there employed was inadvertently used for the term "title," which the plaintiff was to retain until he had received the full consideration for the machinery that he sold. As the defendant is the successor in interest of the plaintiff in respect to the demanded machinery, the express language of the writing could not be changed in an action of this kind.
What is said in the opinion relating to the demand for a remission of $300, in failing to comply with which the plaintiff's judgment was set aside and a new trial ordered, was intended to show that under a statute like ours, which recognizes a clear distinction between actions at law and suits in equity, an award of the remainder due on a conditional contract could not be determined in a replevin action.
The reversal of the judgment operated to the advantage of the defendant, and it is entitled to the costs and disbursements which it has incurred.
The mandate will therefore be recalled and corrected as here indicated.
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