Pioneer Hardware Co. v. Farrin

• Decision Date: 23 February 1910
• Parties: PIONEER HARDWARE CO. v. FARRIN.
• Court: Oregon Supreme Court

107 P. 456

55 Or. 590

PIONEER HARDWARE CO. v. FARRIN.

Supreme Court of Oregon

February 23, 1910

Appeal from Circuit Court, Coos County; J.W. Hamilton, Judge.

Action by the Pioneer Hardware Company against George N. Farrin. Judgment for plaintiff, and defendant appeals. Affirmed.

This is an action to recover money. The complaint alleges in effect that at all times stated therein the plaintiff was and is a duly organized corporation; that in the year 1906, at the special instance and request of the defendant, it sold and delivered to him goods, wares, and merchandise, and also performed for him labor and services, of the reasonable value of $195.11 and $44.90, respectively, no part of which had been paid, except $50 on account of the first cause of action. The answer denies that plaintiff is a corporation but admits the other allegations. For a further defense it is averred that during the year named the plaintiff was dealing in building material, including paint; that defendant applied to its agents for paint suitable to cover his house, and they, well knowing what use would be made of such material represented to him that a certain kind of paint, giving the name thereof, was of first quality, suitable for the purpose desired, would give entire satisfaction, and warranted it for a term of five years from the date of application; that the defendant, being ignorant as to the quality and character of the paint so recommended, and relying on the representations thus made, was induced thereby to purchase such paint for $72.75; that the representations were false, and so known to be by plaintiff and its agents when they were made; that the paint was worthless;that it was put on defendant's house by skilled and competent workmen, who, in applying the pigment, followed the directions of the plaintiff and its agents, thereby incurring an expense of $50; that the paint so used immediately began to fade, and six months thereafter it disappeared, leaving the building exposed to the elements and causing the lumber thereon to check and warp, all to the defendant's damage in the sum of $102.75. The reply put in issue the allegations of new matter in the answer, and also contained the following averment: "Plaintiff alleges that after said paint was sold to defendant, as hereinafter [hereinbefore] stated, and after the same was placed on the building of said defendant, the defendant promised and agreed to pay the plaintiff the full amount of the purchase price thereof." A motion to strike out the quoted paragraph having been denied, a trial was had resulting in a judgment as demanded in the complaint, and the defendant appeals.

Geo. N. Farrin and E.L.C. Farrin, for appellant.

A.M. Crawford, for respondent.

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

It is contended that the averments of the reply, which were challenged by the motion, constitute a departure from the cause of action set forth in the complaint, and, such being the case, an error was committed in refusing to strike out the paragraph so assailed. When an answer sets forth facts forming a defense or counterclaim, the reply thereto may state any new matter, not inconsistent with the complaint, controverting such defense or counterclaim. B. & C. Comp. § 77. Though the facts constituting the cause of action relied upon must be stated in the complaint, if the new matter in the reply only consists of another assignment of the same cause, intended to reassert the averments of the plaintiff's original pleading, by correcting the adverse party's misapprehension in relation thereto, such allegations of new matter in the reply do not establish a departure, since the rule for construing pleadings requires that the complaint and the reply, when not irreconcilable, should be expounded in pari materia, to determine the plaintiff's intention. Mayes v. Stephens, 38 Or. 512, 63 P. 760, 64 P. 319; Crown Cycle Co. v. Brown, 39 Or. 285, 64 P. 451; Patterson v. Patterson, 40 Or. 560, 67 P. 664; Kiernan v. Kratz, 42 Or. 474, 69 P. 1027, 70 P. 506; Zorn v. Livesley, 44 Or. 501, 75 P. 1057; Holmes v. Wolfard, 47 Or. 93, 81 P. 819; Cooper v. Blair, 50 Or. 394, 92 P. 1074; Roots v. Boring Junction Lum. Co., 50 Or. 298, 92 P. 811, 94 P. 182.

The paragraph of the reply so objected to will be examined in connection with the averments of the complaint. It will be remembered it is stated as a cause of action that at the special instance and request of the defendant, the plaintiff sold and delivered to him goods, wares, merchandise, etc and performed for him labor and services, but no promise to pay therefor is alleged in the complaint. Nor was such an averment requisite, for an allegation therein of a sale and delivery of...