Raski v. Wise

• Decision Date: 05 April 1910
• Citation: 107 P. 984,56 Or. 72
• Parties: RASKI v. WISE.
• Court: Oregon Supreme Court

107 P. 984

56 Or. 72

RASKI v. WISE.

Supreme Court of Oregon

April 5, 1910

Appeal from Circuit Court, Clatsop County; Thomas A. McBride, Judge.

Suit by Stoffer Pater Raski against Marcus Wise. From a decree granting insufficient relief, plaintiff appeals. Modified.

G.C. Fulton, for appellant.

John H Smith, for respondent.

MOORE C.J.

This is a suit for an accounting and to have a deed to real property declared a mortgage. From a decree permitting the plaintiff to redeem the land within 60 days by paying $6,000, but in default thereof to extinguish all his right to the premises he appeals. The admitted facts are that on September 26 1891, the plaintiff, being the owner in fee of a homestead and a timber claim in Clatsop county, containing 160 and 120 acres, respectively, conveyed the land to the defendant for the expressed sum of $2,100, and at the same time received from the latter a writing stipulating that upon the payment, within five years, of the consideration specified in the deed, the premises should be reconveyed to the plaintiff, or to his heirs or assigns, but the defeasance was never recorded. The defendant on October 13, 1902, for the sum of $2,000, sold and conveyed the timber claim to Robert Burch, who had no knowledge or notice of any right of the plaintiff to the land.

The evidence shows that prior to September 26, 1891, the plaintiff, engaged in logging, became indebted to several persons who were urgently demanding their money, whereupon the defendant, then a merchant at Astoria and one of plaintiff's creditors, paid off such obligations, but did not discharge his own, and, for some time after receiving Raski's deed, he operated a camp on the premises and received logs and cordwood taken therefrom. The plaintiff's testimony supports the averments of the complaint, which are, in effect: That the land was conveyed by him pursuant to an agreement that the business should be continued by the defendant, who was to cut sawlogs and cordwood for his own use and benefit, retaining the profits and defraying all the expenses; that he would pay certain sums, as stumpage, for logs, etc., taken from the premises that he would give the plaintiff certain wages for his services, pay him for boarding the laborers employed, and credit him with such sums on account of the obligations which the defendant so paid in discharging the debt which he held against plaintiff aggregating $2,800; and that the defendant received on plaintiff's account property and services of the following values: To the timber claim, $3,000; to logging tools and implements, $300; to stumpage on logs and cordwood, $8,167.10; to board of defendant's laborers, $1,320; and to plaintiff's labor from September 26, 1891, to January 1, 1896, $2,496--amounting to $15,283.10, for which sum credit should be given.

The defendant's testimony corroborates the allegations of the answer which, after denying the averments of the complaint, except that plaintiff had been the owner of the land specified, but which he conveyed to the defendant absolutely, states that on September 26, 1891, the plaintiff's indebtedness was $8,526.04, and that he now owes the defendant $10,243.08, which sum does not include the agreed purchase price of the land. As a witness in his own behalf the defendant admits that the business of cutting logs, cordwood, etc., was conducted in his name, but testifies that the supervision resulted from the request of the plaintiff, for whose use and benefit the dealing was managed; that charges were made for all sums of money advanced to the plaintiff and for all goods, wares, and merchandise sold and delivered at his request; that the witness paid the laborers, deducting the amount of their board, which was credited to the plaintiff; and that for all logs, cordwood and other material taken from the land, due credit was given to the plaintiff.

The significant fact which is necessarily decisive of the important issue involved herein is whether the defendant conducted the business for himself, or operated it for the plaintiff, for, if it was managed for the latter, the charges for stumpage, board furnished, and labor performed, as set forth in the complaint, must be disregarded. We do not think it essential to quote from or comment upon the testimony, a careful examination of which convinces us that the business of cutting logs and cordwood was conducted by the defendant for the use and benefit of the plaintiff. The determination thus reached leaves for consideration the amount of money, if any, due from one party to the other.

It is insisted, however, that no attention should be given to any evidence on that subject because the defendant neglected to deliver to the plaintiff a verified copy of his account within the time limited therefor. A written demand for an itemized statement was served June 25, 1903, on the defendant's counsel, who, without any order of the court extending the time, delivered to the plaintiff a copy of such account December 21, 1904, only two days prior to the commencement of the trial of this cause. The statute directs that if a party do not set forth in his pleading the items of an account therein alleged, or file an authenticated copy thereof, he must deliver to the adverse party, within five days after a demand thereof in writing, a verified transcript of the registry of debt and credit, or be precluded from giving evidence thereof. B. & C. Comp. § 84. The testimony shows that, pursuant to the demand, the defendant caused to be prepared an itemized statement of his account, which for more than a year prior to the trial was delivered to and remained in the possession of his counsel. The attorney referred to testified that when he received the statement he intended to have it verified by his client, but that by reason of the defendant's absence, caused by the sickness of his wife, the authentication could not be obtained at that time, and he thereafter forgot to secure the attestation until the cause was set for trial. A court is authorized, in its discretion, to allow any act to be done after the expiration of the time limited therefor, or by an order to enlarge the time for the performance of the act required. B. & C. Comp. § 103. It has been held, evidently in contemplation of this provision, that when it satisfactorily appears that a good and sufficient reason existed for the failure of a party to deliver a copy of an account within the time prescribed, he should be relieved of the default. Rayburn v. Hurd, 20 Or. 229, 25 P. 635. So far as the time is limited within which a verified copy of the account must be delivered, the statute is only directory. 31 Cyc. 590; Robbins v. Butler, 13 Colo. 496, 22 P. 803; Silva v. Bair, 141 Cal. 599, 75 P. 162. That the statement should have been verified and a copy thereof delivered sooner than was done in the case at bar must be admitted, but as the plaintiff did not ask for a continuance, and went to trial in two days after receiving the account, it must be assumed that he had sufficient time to examine the report of the debt and credits involved before evidence was offered. We conclude that the discretion of the court was not abused in relieving the party from his default.

It appears that the statement of what purports to be the sums of money with which the plaintiff is charged and the credits to which he is entitled, was prepared by Arthur Liebman, an accountant, who testified that in making the report he added items which did not appear on the defendant's books, but for which receipts were found, and that he also omitted items for which no acknowledgments of payment could be discovered, saying that Wise told him, "To go ahead and use my own judgment in making the statement." The bill of items of debit and credit is designated under two captions, as Raski's "Personal Account," and his "Camp and Wood Account," and was over objection and exception received in evidence as defendant's Exhibit U. The personal account commences with what purports to be a copy of a charge made August 27, 1884, and closes February 1, 1895, with a statement of $1,066.05, as the remainder due from the plaintiff to the defendant, and the camp and wood account begins with what seems to be a transcript of a charge made March 20, 1891, and terminates September 26, 1895, with a statement of the balance due from the plaintiff to the defendant of $4,141.79, although items noted as "Omitted to be Charged in Ledger" and under various dates from the beginning of the account to July 17, 1893, are afterwards entered, thus bringing the balance to $4,820.11. The amount of both these accounts is therefore $5,886.16, which sum, with interest thereon at the rate of 10 per cent. per annum, a part of which is compounded, together with $262.59 as taxes imposed on the land, amounts to $12,447.38, after deducting $2,100 as the consideration for the real property conveyed by the plaintiff to the defendant; but if the expressed consideration be taken into account, the plaintiff is indebted to the defendant, so the latter asserts, to the extent of $14,547.38.

At the trial there were introduced in evidence a daybook and two ledgers, purporting to be the defendant's memoranda of debits and credits in dealing with his customers. The first entry in the daybook was made July 1, 1889, and the last item was recorded March 2, 1894. A careful examination of Raski's account as noted therein shows that the entire charges made against him amount to

$4,107.48 while the credits there allowed him aggregate $1,199.01, thus leaving due $2,908.47. This remainder includes a charge of $198.11 paid to Byron S. Kimball on a promissory note executed to him by Raski and Wise which was discharged by the latter, and also includes the further...