Nusom v. Fromm
Decision Date | 03 June 1959 |
Citation | Nusom v. Fromm, 340 P.2d 186, 217 Or. 36 (Or. 1959) |
Parties | Allen NUSOM and Miriam Nusom, Appellants, v. Robert FROMM and Lillian Fromm, Respondents. |
Court | Oregon Supreme Court |
W. C. Winslow and Norman K. Winslow, Salem, for appellants.
Bruce Spaulding, Portland, for respondents.On the brief were Mautz, Souther, Spaulding, Denecke & Kinsey, Portland.
Before McALLISTER, C. J., and LUSK, SLOAN and CRAWFORD, JJ.
Plaintiffs sued at law to recover $7,000 paid to J. D. and Margaret Turnidge for the use and benefit of defendants.Defendants denied generally and plead estoppel arising from res judicata.Plaintiffs recovered judgment for $5,000.Judgment notwithstandng the verdict was entered in favor of defendants, and plaintiffs appeal.
In the one assignment of error three propositions are presented:
1.The timeliness of the order granting judgment notwithstanding the verdict and the right of the court to consider testimony that had been excluded in disposing of such motion.
2.Res judicata.
3.Sufficiency of the evidence to show defendants were indebted to plaintiffs.
The controversy arises from an arrangement entered into in December 1949, wherein plaintiffs leased land and farm equipment from J. D. and Margaret Turnidge, paying as rental one-third of crops produced.The lease gave plaintiffs the right during its term to purchase the farm and equipment for $60,000, applying rentals paid, on account of which $7,000 accrued.Prior to the expiration data of the lease plaintiffs and defendants entered into a 'deal' to purchase the property for $60,000 from David E. and Wilma B. Turnidge, to whom the contract had been assigned.Defendants paid Turnidge $13,000 and Turnidge credited the additional sum of $7,000 previously paid by plaintiffs to Turnidge as rental.Plaintiffs were to operate the farm under a share-crop arrangement with defendants, plaintiffs' share reflected in rentals to be applied as payment by plaintiffs to defendants toward a one-half interest in the farm.The 'deal' was reduced to writing, in part, but never signed.It gave defendants the right to sell the property at any time, and in the event of sale the proceeds were to be applied, as follows:
'In the event the parties of the first part should sell said premises before the expiration of this lease, then after payment of all of the expenses of the operation and the payment of the sum of thirteen thousand dollars to the parties of the first part, together with interest thereon at the rate of five per cent per annum from October 4, 1950, and the payment of the sum of seven thousand dollars to the parties of the second part, together with interest thereon at the rate of five per cent per annum from October 4, 1950, and together with the payment of all the moneys advanced or credited to either of the parties hereto, together with interest thereon at the rate of five per cent per annum from the date of such advance or credit, then the parties of the second part shall be entitled to one-half the increase over the amount invested for their work, labor and services in connection with the operation.'
The farm was operated during 1951 at a loss, and substantial expenses were incurred.In the fall of 1951 the farm was sold for $53,000, of which $13,000 was paid to defendants, the buyer assuming the $40,000 balance owing Turnidge.Plaintiffs received no part of the $13,000.In December 1951plaintiffs sued defendants for an accounting, for determination of outstanding claims against the farm operation, for return to plaintiffs of their down payment of $7,000, together with any profit made on the sale, and for general equitable relief.The late Judge Rex Kimmell dismissed the complaint, finding 'that the issues raised by plaintiffs' complaint and the denial thereof contained in defendants' answer have not been established by a preponderance of the evidence.'No appeal was taken and the present action was instituted.
In their first propositionplaintiffs discuss the timeliness of the order granting judgment notwithstanding the verdict in these words: So far as timeliness is concerned, the original judgment was dated and entered July 16, 1956.The judgment notwithstanding the verdict was entered September 6, 1956, on the fifty-second day.The term had not expired.ORS 4.130 and 17.615.
Plaintiffs then present the issue of the authority of the trial court to determine that a directed verdict should have been entered under ORS 18.140(1) on the ground of res judicata 'when that evidence was not before the Court.'Defendants had offered the pleadings in the prior equity suit in evidence but the offer had been objected to and the objection sustained.The court then denied the motion for a directed verdict and the case was submitted to the jury with the result indicated above.However, in their reply in this action plaintiffs copied and incorporated the res judicata plea in the equity suit, consisting of all the pleadings.Although not in evidence, these pleadings were nevertheless very much in this case and the court was entitled to consider the same at any time.The reply constituted part of the record upon which the issues tried were framed.Both sides pleaded the same record.Its accuracy is not questioned.
The trial court action was timely and its consideration of the pleadings, including that alleging res judicata, was entirely proper.Plaintiffs argue the affirmative allegations are presumed to be denied.This presumption, however, is overcome when the defendants allege the same facts in their answer.
The second proposition concerns res judicata on the merits.Plaintiffs argue the only thing decided in the equity suit was joint venture and defendants' counterclaim, both being denied.
In the equity suit joint venture, accounting, determination of claims and profits and return of the $7,000 were all involved, as well as a general prayer, and submitted to the court.An examination of the pleadings in that suit leads to the inescapable conclusion that the primary issue there, as here, revolved around the item of $7,000....
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...is not a bar, except as to questions actually determined or directly in issue." (Emphasis supplied.) See also Nusom et ux. v. Fromm et ux., 217 Or. 36, 340 P.2d 186; Kelley et ux. v. Mallory et ux., 202 Or. 690, 277 P.2d 767; and Wagner v. Savage, Adm'r, 195 Or. 128, 147, 244 P.2d While Sla......
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