Nicolai Bro. Co. v. Krimble

• Decision Date: 24 February 1896
• Citation: 43 P. 865,29 Or. 76
• Parties: NICOLAI BRO. CO. v. KRIMBLE.
• Court: Oregon Supreme Court

43 P. 865

29 Or. 76

NICOLAI BRO. CO. v. KRIMBLE.

Supreme Court of Oregon

February 24, 1896

Appeal from circuit court, Multnomah county; E.D. Shattuck, Judge.

Action by the Nicolai Bro. Company against Jacob Krimble for goods sold and delivered. From a judgment in favor of defendant notwithstanding a verdict of the jury adverse to him plaintiff appeals. Reversed.

A.C. Emmons, for appellant.

R.C. Wright, for respondent.

BEAN, C.J.

This case comes here on an appeal from a judgment given in favor of defendant, notwithstanding a verdict of the jury adverse to him. The facts are that, on December 11, 1893, the plaintiff commenced an action against the defendant in the justice's court by filing a complaint which, inter alia alleged: "That defendant is indebted to plaintiff in the sum of $92.25, on account of certain goods, wares, and merchandise sold and delivered by plaintiff to defendant at the special instance and request of defendant amounting to the said sum of $92.25. That the said sum of $92.25 is now due and owing, and the same has not been paid nor any part thereof." On the 14th day of December, as demanded by the defendant, plaintiff furnished him a copy of the account upon which the action was brought, which gave the items, date, character, and value thereof. On the next day the defendant, without objecting to the form or sufficiency of the complaint, answered, denying the allegations therein contained, and for an affirmative defense averred, in substance, that on July 24, 1893, plaintiff and defendant entered into an agreement by which the plaintiff was to furnish to the defendant certain goods, wares, and merchandise including those referred to in the complaint, as shown by the itemized statement thereof, for use in the erection of a certain church building, for a gross sum of $608, and that the same had been fully paid before the commencement of the action. The reply admits the contract referred to in the answer, but denies that the work and material for which the action was brought was included therein or as a part thereof, and alleges that the goods wares, and merchandise referred to in the complaint were not included in said contract, but were furnished the defendant outside of the contract, and in addition to those to be furnished thereunder. After two trials in the justice's court, and two in the circuit court, a verdict was finally rendered for plaintiff for the amount sued for. Whereupon defendant filed a motion for judgment notwithstanding the verdict, upon the ground that the complaint did not state a cause of action. This motion was sustained, and plaintiff appeals.

That the...