Rumble v. Cummings

• Decision Date: 09 June 1908
• Citation: 95 P. 1111,52 Or. 203
• Parties: RUMBLE et al. v. CUMMINGS.
• Court: Oregon Supreme Court

95 P. 1111

52 Or. 203

RUMBLE et al. v. CUMMINGS.

Supreme Court of Oregon

June 9, 1908

Appeal from Circuit Court, Union County; T.H. Crawford, Judge.

Action by E.W. Rumble and another, partners doing business as the Elgin Forwarding Company, against F.M. Cummings. From a judgment for plaintiffs, defendant appeals. Affirmed.

This is an action by E.W. Rumble and F.D. McCully, partners doing business as the Elgin Forwarding Company, against F.M Cummings, to recover $998.77, the value of certain goods wares, and merchandise, alleged to have been sold and delivered to the defendant at his request, and for money advanced to him. The answer denies the material allegations of the complaint, and as counterclaims sets up five separate defenses, in substance as follows: (1) That about June 20 1906, the parties made an agreement, whereby the plaintiffs stipulated to purchase for the defendant a sawmill, and to put it in suitable condition for operation, and also to furnish him with such goods, and to advance to him such sums of money as might be necessary to enable him to pay the laborers whom he might employ in manufacturing lumber and in making railroad ties from certain timber, for which he was to receive $6 per 1,000 feet for the lumber, and 20 cents apiece for all the ties that might be accepted by an agent of a railway company; that the agreed value of such material, when delivered, was to be credited on account of the money and goods so advanced and furnished; that pursuant to the agreement the plaintiffs purchased the mill for the defendant, and he moved it to and set it up on certain land thereby incurring an expense of $1,670.64, but on October 3, 1906, they unlawfully took possession of the mill, and refused to furnish him with any more goods, or to advance any more money, whereby the agreement was rescinded, to his damage, in the sum of money last mentioned; (2) that if they had permitted him to manufacture the lumber and to make the ties, he would have made a net profit of $7,000, of which sum he was deprived by their conduct; (3) that, relying upon the validity of the agreement, the defendant made 2,204 ties of the reasonable value of $440.80, the possession of which the plaintiffs took, thereby waiving the inspection mentioned; (4) that he received from them goods of the value of $347.16, and no more, which are the commodities mentioned in the complaint, and which goods were returned to the plaintiffs, who agreed to give the defendant credit therefor on the settlement of their accounts, and that by reason of such stipulation, they ought not to be permitted to recover in this action; (5) that at their request he also made for them 3,020 other ties, of the value of $483.20, no part of which sum has been paid. The reply denies the material allegations of new matter in the answer, and also avers facts applicable to the several causes of defense, upon which issues the cause was tried; and, judgment having been rendered against the defendant, he appeals.

J.W. Knowles, for appellant.

F.S. Ivanhoe, for respondents.

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

It is contended by defendant's counsel that, as the averments of new matter in the answer are not controverted by the reply, an error was committed in rendering judgment for the plaintiffs. The reply denies the "material" allegations of the answer, except such facts stated therein as are admitted by the plaintiffs' pleadings. The adequacy of the reply was not challenged in any manner at the trial, and, such being the case, any defect in that pleading was thereby waived. Ready v. Schmith (decided May 26, 1908) 95 P. 817.

It is insisted that an error was committed in striking out, over objection and exception, that part of the defendant's testimony which tended to show that one Leander Martin was plaintiffs' agent. To render the action of the court in this particular comprehensive it will be necessary to call attention to some of the salient features of the case, as they were developed at the trial. A contract, made by the parties, June 11, 1906, was received in evidence, a copy of which has been sent up, showing that the defendant stipulated to convert all the available timber on certain lands in Union county into railroad ties, which he was to deliver to the plaintiffs at such places as they might designate, in quantities as desired, but not less than 12,000 a month. The ties were to be of uniform length and of four classes differing in width and thickness, all of which were to be subject to inspection by an agent of the Oregon Railway & Navigation Company, whose decision was final. The ties which did not correspond with the specifications were to be considered as "culls," and, without receiving any consideration therefor, the defendant was to leave them on the premises as the property of the plaintiffs, who were to pay him for all ties accepted, prices varying from 13 to 20 cents. The defendant, referring to this contract, testified that, about four days after it was signed, it was abandoned by him and the plaintiffs' agent, Martin, with whom he made another agreement, the terms of which are stated in the first separate defense; that pursuant thereto, Martin purchased for the witness a sawmill, and stipulated to furnish whatever goods and money were necessary to enable him to manufacture the lumber and ties, and instructed him how to draw orders with which to pay the laborers whom he might employ, which vouchers Martin was to indorse, whereupon the plaintiffs were to pay the sums of money stated therein; that the witness, to secure the purchase price of the mill, executed to the plaintiffs a mortgage; that, Martin having selected on the banks of a stream the site for the mill, the witness built thereat a dam, a part of which was carried out by a freshet; that the plaintiff Rumble, referring to the loss thus sustained, said to the witness: "I have come to the conclusion that the dam is an expensive luxury, and we don't propose to put any more money into the dam"; that a voucher, drawn according to the...