Morrison v. McAtee

• Citation: 32 P. 400,23 Or. 530
• Parties: MORRISON v. McATEE.
• Decision Date: 27 February 1893
• Court: Oregon Supreme Court

32 P. 400

23 Or. 530

MORRISON v. McATEE.

Supreme Court of Oregon

February 27, 1893

Appeal from circuit court, Wasco county; W.L. Bradshaw, Judge.

Action by Jonathan Morrison against B.C. McAtee, executor of William McAtee, deceased. Judgment for plaintiff. Defendant appeals. Reversed.

A.S. Bennett and J.L. Story, for appellant.

B.S Huntington, for respondent.

BEAN J.

This is an appeal from a judgment in favor of the claimant, rendered in a proceeding under section 1134 of Hill's Code, to enforce the claim of Jonathan Morrison against the estate of William McAtee, deceased, for an alleged breach of contract made between plaintiff and deceased, by which the latter agreed to support the former during his life in consideration of such services as he might be able to render. From the claim as presented to and rejected by the executor, and which forms the basis of this proceeding, it appears that in April 1872, the claimant, who was then 61 years of age, and the deceased entered into an oral agreement, whereby it was agreed that the claimant should work for the deceased as a blacksmith and general farm laborer as long as he might live or might be able, and, in consideration thereof, the deceased should support and maintain him during the term of his natural life. In pursuance of this agreement the claimant entered into the service of the deceased, and continued to work for him without any compensation other than his maintenance and support, performing such labor as he was required and was able to perform until the 12th day of November, 1890, when McAtee died, leaving a will, but making no provision for the support and maintenance of the claimant and his personal representatives have failed and neglected to comply with the contract. As the important question on this appeal arises on the instructions of the court a discussion of the evidence as introduced on the trial is not essential further than to say that it tended to show the making of the contract as alleged, performance by the claimant, and the refusal by the executor of the estate to make any definite or permanent provision for the support and maintenance of the claimant, although he is old and infirm, and unable to support himself; hence there was evidence tending to show a breach of contract, and the motion for a nonsuit was properly overruled.

Before considering the other questions, it is proper to advert briefly to the sufficiency of the assignments of error in the notice of appeal. The following are a sufficient illustration of such assignments for the purposes of this case: "(4) The court erred in sustaining the objection of the claimant to the question propounded for the defendant estate to said witness Jonathan Morrison upon his across-examination, which question was as follows: 'Didn't Mr. McAtee set aside provisions enough to support you and Mrs. McAtee?' (5) The court erred in overruling the objection of the counsel of the defendant estate to a question asked of said claimant Morrison, which is as follows: 'I will ask you to state whether you have any means by which you can support yourself other than your claim against this estate?' and permitting the witness to answer: 'No, sir,' over the objection of the defendant estate." "(7) The court erred in instructing the jury that 'where the contract alleged is once shown to exist, the burden of proving that it was abandoned, or that the estate had been released therefrom, is upon the estate before it can be relieved of its liability thereon.' (8) The court erred in instructing the jury: 'The measure of damages in this case, if you find that the plaintiff should recover, is such sum as would pay for Morrison's support and maintenance for the time which Morrison would probably live after the death of McAtee as shown by the mortality tables.' " The contention for respondent is that, although the notice of appeal specifies with reasonable certainty the particular rulings of the trial court which are claimed to have been erroneous, it is insufficient because it does not also specify wherein or upon what ground it is claimed such rulings are erroneous. The provision of the statute that "the notice of appeal shall specify the grounds of error with reasonable certainty" (Hill's Code, § 537) has been repeatedly enforced by this court. Whenever the question has been presented it has always been held that a general assignment of error is insufficient. The sufficiency of such an assignment was carefully considered in the recent case of Herbert v. Dufur, 32 P. 302, (decided Feb. 6, 1893,) and further discussion of the question is unnecessary at this time. But we have never held, nor do we think the statute contemplates, that the notice of appeal shall also specify the particular reasons upon which it is claimed the ruling of the trial court is erroneous, when such ruling is challenged on the ground that it is not the law as applicable to the issues and facts of the particular case. In such case it is thought to be sufficient to specify in the notice of appeal the particular ruling of the trial court upon which the appellant would rely as error in the appellate tribunal, without stating the paticular reasons for such claim; and this we understand to be the prevailing practice in this state. The object of the assignments of error in the notice of appeal is to notify the respondent and appellate tribunal of the particular error...