North Pacific Lumber Co. v. Spore

• Decision Date: 21 March 1904
• Citation: 44 Or. 462,75 P. 890
• Parties: NORTH PACIFIC LUMBER CO. v. SPORE et al.
• Court: Oregon Supreme Court

75 P. 890

44 Or. 462

NORTH PACIFIC LUMBER CO. v. SPORE et al.

Supreme Court of Oregon

March 21, 1904

Appeal from Circuit Court, Multnomah County; A.L. Frazer, Judge.

Action by the North Pacific Lumber Company against Cornelius L Spore and others. From a judgment for plaintiff, part of the defendants appeal. Reversed.

This is an action to recover the value of certain building material. It is alleged in the complaint, in effect, that, at all the times mentioned therein, plaintiff was a corporation; that the defendants, Cornelius L. Spore, Henry O. Robinson, Andrew M. Hansen, and Herman D. Landon, formed partnerships as Spore & Robinson and Hansen & Landon, respectively, and were also partners and jointly interested in the purchase and use of building material; that between August 12, 1901, and August 1, 1902, plaintiff sold and delivered to them, at their request, timber and lumber of the agreed value of $5,982.49 which sum they promised to discharge, but had paid thereon only $4,400, leaving due $1,582.49, for which judgment was demanded. The defendants Hansen & Landon made no appearance but Spore & Robinson filed an answer in the nature of a plea in abatement, in which it was stated that they never were partners with Hansen & Landon, or jointly interested with them in the transaction of any business. The reply denied the allegations of new matter in the answer, and a trial, being had, resulted in a verdict for plaintiff, upon which a judgment was rendered to the effect that Spore & Robinson, in the purchase and use of the material in question, were partners with Hansen & Landon. Spore & Robinson having refused further to plead or answer, judgment was rendered against them only, in their firm name and individually, for the sum demanded, and they appeal.

A.F Flegel and W.T. Muir, for appellants.

Thomas N. Strong, for respondent.

MOORE C.J. (after stating the facts).

It is contended by appellants' counsel that no testimony was given at the trial tending to prove the existence of a partnership between Spore & Robinson and Hansen & Landon, and, this being so, the court erred in denying their motion for a judgment of nonsuit.

A motion for an involuntary judgment of nonsuit admits, as a matter of law, the truth of all the testimony given upon a material issue of the complaint, and also every fair and legitimate inference of fact deducible therefrom, but denies that a consideration thereof authorizes the jury to find a verdict for the plaintiff. Brown v. Oregon Lumber Co., 24 Or. 315, 33 P. 557. In Perkins v McCullough, 36 Or. 146, 59 P. 182, it is said: "The rule is well settled in this state that if there be any evidence, however slight, fairly susceptible of an inference or presumption tending to establish a material allegation of the complaint, it is the duty of the court to deny the motion for a judgment of nonsuit, and submit the question involved to the jury for determination."

The testimony shows that the defendants Spore & Robinson entered into a contract with the United States, agreeing, in consideration of $92,789.40, to furnish the material and erect at Ft. Columbia, Wash., certain buildings, for which they were monthly to receive 80 per cent. of the estimated value of the work as it progressed, and the remainder when the structures were completed. On July 12, 1901, the defendants Hansen & Landon entered into a contract with Spore & Robinson, whereby they agreed to furnish the material and erect the buildings for $10,000 less than the original price. Spore & Robinson were to receive the money as it was paid discharge all bills incurred on account of the work, retain such a percentage of $10,000 as the monthly payments bore to the contract price, and pay the remainder to Hansen & Landon. The work under the contract was begun July 13, 1901, by Hansen & Landon, who employed Robinson as superintendent. They also ordered from plaintiff a quantity of lumber and timber, which was shipped to Ft. Columbia and used in erecting the buildings, the account therefor being charged to them. After expending their own money in carrying out the agreement, Hansen & Landon found it difficult to continue the work without more means, to secure which they borrowed from the London & San Francisco Bank of Portland, Or., $10,000, giving their promissory note therefor, which was also signed by Spore & Robinson and by F.E. Beach. As collateral security, Hansen & Landon assigned to the bank promissory notes for the sum of $6,000, secured by a mortgage, and the money borrowed was placed to the credit of Spore & Robinson, who, in paying for material used and labor employed in the construction of the buildings, drew checks, which were countersigned by Hansen & Landon. As the monthly payments were made, Spore & Robinson, without appropriating any part thereof, deposited the money in that bank and drew it out in the manner indicated, but near the completion of the work, having received a payment of about $22,000, they refused to deposit it in the London & San Francisco Bank, left the $10,000 note and an overdraft of about $60 unpaid, and declined to pay plaintiff's bill and other expenses incurred in the construction of the building, amounting to about $5,500, though they promised to pay these claims if Hansen & Landon would procure for them a statement thereof, which they furnished. The defendant Herman Landon, as plaintiff's witness, testified that about October 1, 1901, Capt. Goodale, the quartermaster in charge of construction at Ft. Columbia, notified him that the original contract could not be sublet, which information he communicated to Spore & Robinson, whereupon it was understood that he and his partner should assist in putting up the buildings, and Spore & Robinson would make it right with them; that they continued operations until July, 1902, when, having learned that their contract was invalid, because prohibited by the United States statute, they notified Spore & Robinson that they would quit work unless some definite arrangement were made, whereupon Robinson told them that, if they would continue the construction of the buildings, the profits would be divided, and they proceeded with the work. The witness, referring to the statement that Spore & Robinson would make it right with them, was asked: "Who were you talking with in this conversation?" and replied: "Spore & Robinson--Mr. Robinson principally." He also says that the agreement was that the two firms should jointly go ahead with the work, and there should be a fair division of the profits. On cross-examination he was asked: "Who had actual charge of the job?" and answered: "It was practically all four men--three men. Mr. Spore was on the ground. We consulted each other; talked matters over. We went mutually right along up to the final annulling of the contract in July." Landon's attention having been called to the objections made by Capt. Goodale, he was asked: "Speaking of these former times when the government would not recognize your contract, what conversation, if any, did you have with Spore & Robinson then?" and replied: "We informed them of the fact, and told them we were working under difficulties, and we wished to be released. Q. What did they say? A. To proceed with the work, and they would do what was right about the matter; they could not expect us to proceed under such circumstances under the contract. Q. When was this? A. At several different times during the progress of the work, prior to July 5, 1902." On cross-examination, Landon, having testified that the contract with Spore & Robinson was revoked in July, 1902, was asked: "It was annulled before that time?" and answered: "It was a kind of mutual understanding we were to go ahead with the job, then we would not be bound by the contract. *** Q. Do you mean to say the contract was annulled before that time? A. Yes, sir; we expected we would not be held by it. We were to go ahead and complete the job, and they would do whatever was right in the matter." Landon's testimony is corroborated in most particulars by that of the defendant Hansen, who said that Spore & Robinson told them "to go ahead, and we would do this work mutually. Q. When was it? A. Some time after we began; six months after the job was started. Q. They repeated to you at that time you would all do the work mutually. A. Yes, sir. Q. Did that take the place of the former agreement? A. It did. It was our understanding that took the place of the written agreement at that time; we had already consented." Elsewhere in the examination, in referring to what Robinson said about doing the work mutually, he was asked: "What did he say, if anything, about the division of the profits or anything of that kind?" and answered: "He said he would do whatever was right. There was nothing said as to the amount, or anything of that kind. He said, 'We will divide up,' or they would do what was right with us." Capt. George L. Goodale, U.S.A., who, as quartermaster, had charge of the construction of the buildings at Ft. Columbia, testified that in July, 1901, he notified Hansen that Spore & Robinson could not sublet their contract; that about 60 days thereafter, having heard that Hansen & Landon claimed some interest in the contract, he was told by Robinson that there was no truth in the rumor, and about January, 1902, having again heard that Hansen & Landon were interested in the work, he notified Spore & Robinson, and was informed by each that the contract had not been sublet. In detailing the latter interview, the witness testified as follows: "I said, 'Are Hansen & Landon nothing but employés of yours?' Mr. Robinson said, 'Yes.' " E.T. Williams, manager of the plaintiff corporation, testified that, having given Spore & Robinson a statement that the lumber and...