Shell Co. of California v. O'Reilly

Decision Date15 March 1927
Citation121 Or. 215,253 P. 1046
CourtOregon Supreme Court

Department 2.

Appeal from Circuit Court, Marion County; Percy R. Kelly, Judge.

Action by the Shell Company of California against James C O'Reilly, with counterclaim by defendant. Judgment for plaintiff, and defendant appeals. Affirmed.

Robin D. Day, of Salem (Donald W. Miles of Salem, on the brief), for appellant.

Roy F Shields, of Portland (Smith & Shields, of Salem, on the brief), for respondent.


In substance, the complaint charges that, during the period between January 1, 1923, and October 15 of the same year the defendant was an employee of the plaintiff and as such received from the latter and nineteen other persons named divers sums of money belonging to the plaintiff aggregating $7,924.30, which he has ever since had and held for the use and benefit of the plaintiff and refuses to pay although demand therefor has been made. The entire complaint is denied by the answer, and, as new matter, the defendant avers that at all times mentioned he was an employee of the plaintiff; that plaintiff was engaged in selling oils and gasoline to service stations, garages, and to the public; that it sold coupon books to the general public, and indirectly but not directly to service stations and garages who were disposing of gasoline for a profit. It is said in the answer that the plaintiff had a verbal agreement with certain service stations to deliver them certain coupon books, provided some of their customers would sign for them and the stations would pay for them, but that the amount of the transaction was unknown to the defendant; that the defendant has never received any money for the use of the plaintiff.

A counterclaim is asserted in the sum of $400, alleged to have been loaned by the defendant to one L. L. Lynn to enable him to pay an indebtedness to the Standard Oil Company with a view of obtaining his business for the plaintiff. The counterclaim and the allegations about the sale of coupon books are denied by the reply.

On motion of the plaintiff and against the consent of the defendant, the court referred the case to a referee, who heard the testimony, returned to the court a transcript thereof without any further report upon the issues and later reported findings of fact and conclusions of law to the effect that the plaintiff was entitled to recover judgment against the defendant for $7,924.30, together with interest on said amount from the 15th day of October, 1923, at the rate of 6 per cent. per annum, and for costs and disbursements. Judgment was rendered accordingly, and the defendant has appealed.

Supporting the motion of the plaintiff for reference is an affidavit to the effect that the trial of the issue would involve an examination of the accounts of all the persons named in the complaint, both between said persons and the plaintiff and between them and the defendant, ranging in amounts from $9.54 to $1,373.11, most of which transactions involve numerous entries of debit and credit; likewise, that the trial would involve the examination of the status of the accounts between the plaintiff and two service stations operated by the defendant, extending over several months. Although this affidavit was opposed by one made by the defendant, the court referred the matter as stated with the result mentioned.

The principal contention of the defendant on this appeal is that it was error to refer the case in the manner stated in that it deprived the defendant of the right of a trial by jury. In Salem Traction Co. v. Anson, 41 Or. 562, 67 P. 1015, 69 P. 675, similar issues were involved, but a considerable less number of accounts. The court, speaking by Mr. Justice Robert S. Bean, disposed of the matter as follows:

"As to what constitutes

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4 cases
  • Ward v. Town Tavern
    • United States
    • Oregon Supreme Court
    • February 28, 1951
    ...court and this court, are deemed tantamount to the verdict of the jury: Tribou v. Strowbridge, 7 Or. 156, and Shell Company of California v. O'Reilly, 121 Or. 215, 253 P. 1046. But in equity suits the report is merely advisory, and, upon appeal, it is the duty of this court to try the suit ......
  • Snow v. Tompkins
    • United States
    • Oregon Supreme Court
    • July 6, 1955
    ...113 Or. 656, 234 P. 289; Sharp v. McCargar, 114 Or. 435, 236 P. 262; Craven v. Wright, 114 Or. 692, 236 P. 1043; Shell Co. of California v. O'Reilly, 121 Or. 215, 253 P. 1046; Fitzgerold v. Nelson, 159 Or. 264, 79 P.2d 254; Keegan v. Lenzie, 171 Or. 194, 135 P.2d 717; 4 Am.Jur., Assumpsit, ......
  • Davis v. Tyee Industries, Inc.
    • United States
    • Oregon Court of Appeals
    • October 5, 1982 enable the action to be maintained. Pankey v. Oregon Etc., 122 Or. 346, 351, 255 P. 470 (1927); Shell Co. of California v. O'Reilly, 121 Or. 215, 220, 253 P. 1046 (1927). Here, plaintiff makes a claim to money held by defendants that should have been paid to him as sales commissions. The......
  • Bartlett v. Nab
    • United States
    • Oregon Supreme Court
    • May 16, 1956 turn renders nugatory any order the court may have entered predicated upon the report standing alone. In Shell Co. of California v. O'Reilly, 121 Or. 215, 219, 253 P. 1046, 1047, we '* * * this court can only look into the report of the testimony for the purpose of ascertaining whether t......

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