Morrison v. Franck
| Decision Date | 01 August 1911 |
| Citation | 117 P. 308,59 Or. 429 |
| Parties | MORRISON et al. v. FRANCK. |
| Court | Oregon Supreme Court |
Appeal from Circuit Court, Multnomah County; John B. Cleland, Judge.
Action by Finley Morrison and another, partners, doing business under the firm name of Finley Morrison & Son, against L.S Franck. From the judgment, defendant appeals. Affirmed.
This is an action to recover part of the commission earned from a sale of real estate.
The complaint alleges that D.C. Pelton, being the owner of certain timber land, authorized the plaintiffs to sell the same at the price of $200,000, for which they should receive as compensation, 5 per cent. of the sale price, such authority extending until April 7, 1909; that during March 1909, plaintiffs offered the land to the Crossett Timber Company, through its representative, A. Sprague; that defendant also had authority from Pelton to sell the land on the same terms, and that he was endeavoring to sell it to the same party; that the Crossett Timber Company agreed to purchase it, if plaintiffs and defendant would come to some agreement between themselves and Pelton as to the division of the commission; and "thereupon, in order to effect a sale, *** plaintiffs and the defendant entered into an agreement, whereby the plaintiffs would discontinue offering the same to any other party and assist the defendant in making a sale of said lands to the Crossett Timber Company and if a sale should be made, through their joint efforts, or by either the plaintiffs or the defendant, to said Crossett Timber Company, then the plaintiffs were to receive, as their portion of said commission, the sum of $2,500," less $58.75, a portion of the expense of defendant; that "the plaintiffs performed services for the defendant which resulted in the making of a sale of said lands to the Crossett Timber Company, and the defendant received the said commission of $10,000, and has neglected and refused to pay the plaintiffs said sum of $2,441.25, or any part thereof."
The answer denied the allegations of the complaint, except it admits that defendant had authority to and did sell the land. Trial was had before a jury and a verdict rendered in favor of plaintiffs for the sum of $1,666.66, and from a judgment thereon defendant appeals.
Robert Treat Platt (Platt & Platt, on the brief), for appellant.
A.B Coovert, J.F. Boothe, and G.W. Stapleton, for respondents.
EAKIN, C.J. (after stating the facts as above).
First, plaintiffs move the court to affirm the judgment of the lower court, for the reason that there is no proper bill of exceptions certified to this court. Such motion was filed on June 26, 1910, and denied on October 4, 1910 (110 P. 1090), for the reason that it was not filed within the time prescribed by rule 20 of this court, as amended October 20, 1909. The abstract, at page 6, states that "the following proceedings were then had, as shown by the bill of exceptions," which thereafter purports to contain the bill of exceptions in full. The motion for the nonsuit appears at page 86 of the abstract, where it is stated: "This was all the testimony introduced upon the presentation of plaintiffs' case in chief." The motion for a directed verdict appears at page 136, preceding which it is stated: "The foregoing was all of the testimony offered in this cause by either party thereto." Pages 136 to 156 contain a statement of the exceptions arising upon the admission of testimony, and the instructions to the jury, with such a statement of the evidence as was deemed necessary to explain the exceptions. The separate statement of the exceptions and facts necessary to a proper understanding of them is sufficient as shown in the abstract, but plaintiffs raise the question that the bill of exceptions is not properly certified to this court, contending that the certified copy of the bill of exceptions, as settled and signed by the judge, should be filed in this court. This question must be determined by reference to section 554, L. O.L., and rules of the Supreme Court Nos. 5 and 9 (50 Or. 572, 574, 91 P. viii, ix).
By rule 13, adopted August 2, 1894 (24 Or. 601, 37 P. viii) provision was made for filing the abstract. This rule was approved in Fratt v. Wilson, 30 Or. 542, 47 P. 706, 48 P. 356, but was only available upon the stipulation of counsel. Thereafter, in 1899, the Legislature amended section 541, Hill's Ann.Laws 1892 (section 554, L. O.L.), by which it is provided that: "Upon the appeal being perfected, the appellant shall, within thirty days thereafter, file with the clerk of the appellate court a transcript or such an abstract as the rules of the appellate court may require, of so much of the record as may be necessary to intelligibly present the questions to be decided by the appellate tribunal." Until that amendment, the filing of the transcript was essential to bring the case on appeal to this court, unless it was waived by stipulation. By authority of that amendment, rule 13 was amended on July 2, 1900, so as to make the abstract take the place of the transcript in civil cases. By rule 9, which specifies what shall be contained in the abstract, referring to the recital of proceedings on the trial, it is stated: "Set out so much of the bill of exceptions, or the substance thereof, as is necessary to show the rulings of the court to which exceptions were taken during the progress of the trial, and which will be urged as error on the appeal, and no more." 50 Or. 576, 91 P. ix. And by rule 5 it is provided: "If the respondent shall deem the appellant's abstract imperfect or unfair, he may, within...
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