Sayles v. Daniels Sales Agency

• Decision Date: 29 March 1921
• Citation: 100 Or. 37,196 P. 465
• Parties: SAYLES v. DANIELS SALES AGENCY.
• Court: Oregon Supreme Court

196 P. 465

100 Or. 37

SAYLES v. DANIELS SALES AGENCY.

Supreme Court of Oregon

March 29, 1921

Department 1.

Appeal from Circuit Court, Multnomah County; George W. Stapleton Judge.

Action by B. P. Sayles against the Daniels Sales Agency. From a judgment for plaintiff, defendant appeals. Modified.

This is an action in assumpsit to recover for goods sold, money advanced, and commission agreed to be paid on sales of automobiles. The complaint is as follows:

"That at all times hereinafter mentioned the Daniels Sales Agency was a corporation duly existing under and by virtue of the laws of the state of Oregon. That on the 6th day of January, 1919, the defendant was indebted to plaintiff in the sum of six and 45/100 dollars for goods, wares, and merchandise sold and delivered to the defendant at its special instance and request. That the same has not been paid nor any part thereof.

"Plaintiff for a first further and separate cause of action against the above-named defendant alleges: That at all the times hereinafter mentioned the defendant was a corporation duly existing under and by virtue of the laws of the state of Oregon. That the plaintiff on the 21st day of January 1919, advanced, at the special instance and request of the defendant, the sum of $22.34 for freight on a truck, which the defendant promised and agreed to pay. That the same has not been paid nor any part thereof.

"Plaintiff for a second further cause of action alleges: That at all the times hereinafter mentioned the defendant was a corporation duly existing under and by virtue of the laws of the state of Oregon. That on the 1st day of January 1919, the plaintiff and defendant entered into a contract wherein and whereby the defendant agreed to pay a commission on the sale of automobiles and trucks, and that the plaintiff, in pursuance of said contract, did sell one automobile and one truck, and that the commission on the same was and is $581.25, which the defendant has failed and neglected to pay, although the same has often been demanded of the defendant by the plaintiff, except the sum of $100 leaving a balance due and owing the plaintiff of the sum of $481.25.

"Wherefore the plaintiff prays judgment against the defendant for the sum of $508.99 and interest thereon, and for the costs and disbursements of this action."

The answer consists in a denial of each and every allegation of the complaint, including the averments of defendant's corporate existence, and of the following affirmative defense:

"That plaintiff assisted in selling automobiles and trucks, and that he was paid for in full, for the services mentioned in plaintiff's complaint, and that there is nothing due or owing to plaintiff as mentioned aforesaid in plaintiff's complaint."

There was a verdict for plaintiff, and defendant appeals.

Morris A. Goldstein, of Portland (F. S. Senn, of Portland, on the brief), for appellant.

George J. Cameron, of Portland, for respondent.

McBRIDE, J. (after stating the facts as above).

The presiding judge, who tried this case in the court below, characterized the pleadings both of plaintiff and defendant as being "bum," and while that term is not defined in Bouvier, or any standard work on pleading, it is sufficiently known colloquially to enable us to say that the designation was not wide of the mark.

The first attempted cause of action pleads the mere legal conclusion that "defendant was indebted to plaintiff" for goods, wares, and merchandise sold and delivered to defendant at its special instance and request. It does not show who furnished the goods, or what their value was, or that defendant promised to pay for them, and we are not able to stretch the mantle of charity sufficiently to make it cover these defects. In support of the sufficiency of the allegations, counsel for plaintiff cites Nicolai v. Krimbel, 29 Or. 76, 43 P. 865; but in that case there was an allegation that plaintiff sold and delivered the goods to defendant, while here we are left in the dark as to who sold and delivered the merchandise. There is no cause of action stated, and this item of $6.45 must be eliminated.

As to the second and third causes of action, we are of the opinion that while indefinite in statement they...