Murphy v. Deal

• Decision Date: 02 December 1913
• Citation: 136 P. 658,68 Or. 18
• Parties: MURPHY v. DEAL et al.
• Court: Oregon Supreme Court

136 P. 658

68 Or. 18

MURPHY v. DEAL et al.

Supreme Court of Oregon

December 2, 1913

Department 2.

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

Action by Floyd Murphy against William K. Deal and another. From a judgment for plaintiff, defendants appeal. Affirmed.

H.E Collier, of Portland (Collier & Collier, of Portland, on the brief), for appellants.

Claude Strahan, of Portland (Waldemar Seton, of Portland, on the brief), for respondent.

McNARY, J.

Over the month of February, 1912, plaintiff was the owner of a quantity of furniture used in the conduct of a rooming house in Portland. During the same time defendant Deal was the owner of a 15-acre tract of land near the town of Estacada Clackamas county. On February 27, 1912, plaintiff asserts the defendants conspired to defraud him of his personal property by means of certain false representations, whereby he was induced to and did exchange his personal property for the real property of defendant Deal; that upon the discovery of the falsity of the representations, plaintiff tendered a deed of the premises to the defendant Deal, and concurrently demanded a return of the personal property, but that the proffer was refused, whereupon, this action was instituted to recover judgment in the sum of $800. Defendants, after admitting plaintiff's ownership of the personal property deny stoutly the gravamen of plaintiff's complaint, and allege as an affirmative defense that defendant W.A. Rihorn was engaged by plaintiff to dispose of his personal property, and that, agreeably to the contract of employment, Rihorn on February 28, 1912, introduced the defendant Deal to the plaintiff, with the result that an exchange of properties was had; that Rihorn received from plaintiff $25 in payment for services rendered in connection with the transaction. In a rejoinder plaintiff admits the engagement of and payment to Rihorn of $25, but alleges that he violated his trust as agent, and confederated with Deal to defraud plaintiff. Judgment for $500 was awarded plaintiff.

Error is buttressed upon three assignments; the principal one being the court's refusal to grant an order of nonsuit particularly with respect to the defendant John Keller. A patient reading of the evidence contained in the record on appeal confirms us that the trial court had no other alternative than to pass to the jury the determination of the question whether the...