Ruckman v. Ormond

• Decision Date: 24 November 1902
• Citation: 42 Or. 209,70 P. 707
• Parties: RUCKMAN v. ORMOND.
• Court: Oregon Supreme Court

70 P. 707

42 Or. 209

RUCKMAN v. ORMOND.

Supreme Court of Oregon

November 24, 1902

Appeal from circuit court, Union county; Robert Eakin, Judge.

Action by R.D. Ruckman against William Ormond. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

This is an action to recover the sum of $175 for the use of an engine and boiler. The transcript shows that the property, being subject to certain liens, was leased by plaintiff on January 7, 1899, for the term of six months, at $50 a month, to J.C and T.A. French, partners as French Bros., who stipulated in writing that as soon as said liens were discharged they would purchase the property, giving therefor the sum of $1,000 payable in equal installments in three, six, and nine months respectively, and that any sums paid in the meantime on account of rent, in excess of $100, should be credited on the purchase price; but plaintiff did not engage to secure the release of the liens or to sell the property. French Bros used the engine and boiler for the term agreed upon, but neglected to pay any rent therefor, and on July 15, 1899 assigned all their interest under the contract to the defendant, who, having had possession of the property until November 10, 1899, paid plaintiff the sum of $300. This action is brought on the theory that such payment was made on account of rent due from French Bros., and judgment is demanded for the use of the property while defendant had possession of it. The answer, after denying the material allegations of the complaint, sets out a copy of said written contract, averring that, at the time it was entered into, plaintiff orally agreed to discharge said liens within six months, and, upon the payment of the purchase price, to transfer the property; that said contract was assigned to defendant, who paid on account of the purchase price the sum of $300, and tendered to plaintiff the remainder due thereon, less two months' rent, and demanded of him a release of said liens and a transfer of the property, but he refused to comply therewith, thereby canceling the agreement. The allegations of new matter in the answer being denied in the reply, a trial was had and judgment rendered for plaintiff in the sum of $170.25, from which defendant appeals.

J.D. Slater, for appellant.

C.H. Finn, for respondent.

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

It is contended that the jury refused to obey the court's instruction, and that, defendant having moved to set aside their verdict on account of such disobedience, an error was committed in refusing to grant a new trial. The jury were charged, in effect, that if defendant paid money to plaintiff on account of the purchase price of the property, and not for French Bros., the payment so made should be applied to the rent due thereon while in defendant's possession. An inspection of the transcript shows that on October 5, 1899 defendant gave plaintiff a check for $100, having written thereon the words "on engine," and 26 days thereafter paid him $200, taking his receipt therefor "as part payment on engine, boiler and fixtures contracted for by J.C. French of the firm of French Brothers." Plaintiff, as a witness in his own behalf, testified that these payments...