Smith v. Campbell

• Decision Date: 26 June 1917
• Citation: 85 Or. 420,166 P. 546
• Parties: SMITH v. CAMPBELL. [a1]
• Court: Oregon Supreme Court

166 P. 546

85 Or. 420

SMITH v. CAMPBELL. ^[a1]

Supreme Court of Oregon

June 26, 1917

Department 2.

Appeal from Circuit Court, Multnomah County; J. P. Kavanaugh, Judge.

Action by Oscar L. Smith against Floyd J. Campbell. There was judgment of nonsuit, and from an order setting aside the judgment and granting plaintiff new trial, defendant appeals. Affirmed.

This is an action to recover damages for the breach of a contract alleged to have been entered into by plaintiff, Oscar L Smith, and defendant, Floyd J. Campbell, on March 6, 1914 for the sawing of the timber upon a certain 40-acre tract of land owned by defendant. It is averred that Mart D. Campbell executed the contract as the agent of Floyd J. Campbell; that according to its terms the defendant was to furnish plaintiff with a saw outfit known as the "King of the Woods" for the sum of $325, defendant to retain title to it until the full amount was paid by deducting 25 cents a cord from the price of 40 cents a cord which was payable to him on the 1st and 15th of each month for his work; that, if Smith discontinued the work before all the timber was cut, he should forfeit all right to the saw outfit and any amounts then due him from the defendant. The agreement was signed by M. D. Campbell and witnessed by Floyd J. Campbell. It is further set forth that plaintiff entered upon the performance of the contract and sawed 712 cords of wood; that on July 1 1914, by mutual agreement of plaintiff and defendant, the contract was modified so that, in addition to the sawing Smith should fell and trim the timber, receiving 60 cents a cord, but no more than 45 cents prior to the full payment of the outfit, and after that no more than 45 cents a cord until the contract was completed; that thereafter plaintiff cut 970 cords of the wood; that defendant applied upon the payment of the outfit $316.51 to the plaintiff's damage in said sum that 2,000 cords remained to be cut; that defendant failed and refused to pay any part of the 35 cents a cord as agreed, and on November 1, 1914, wrongfully refused to perform the contract, took possession of the saw outfit and the land, and refused to permit plaintiff to perform the agreement as modified, to the latter's damage in the sum of $1,000.

The answer of the defendant consisted of a general denial of the complaint. After plaintiff introduced evidence, made an offer of proof, and rested his case, counsel for defendant moved for a "nonsuit on the ground that plaintiff has failed to establish by any competent evidence or offer of proof that the contract sued upon is the contract of the defendant, Floyd J. Campbell," and has failed to establish the allegations of his complaint. The court granted the motion. Thereafter the trial court on motion of plaintiff set aside the judgment of nonsuit and granted plaintiff a new trial, from which order defendant appeals.

O. A. Neal, of Portland (Wilson, Neal & Rossman, of Portland, on the brief), for appellant. H. J. Bigger, of Portland (J. N. Hart, of Portland, on the brief), for respondent.

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

Counsel for defendant correctly submit that, where a third party is sought to be held upon a contract alleged to have been executed by an agent, the party seeking to enforce the contract must establish the alleged agency ( Hahn v. Guardian Assurance Co., 23 Or. 576, 32 P. 683, 37 Am. St. Rep. 709; Jameson v. Coldwell, 25 Or. 199, 35 P. 245; Connell v. McLoughlin, 28 Or. 230, 42 P. 218; Rumble v. Cummings, 52 Or. 203, 208, 95 P. 1111); that an agent's authority cannot be proved by his own statements that he is such an agent, and before the acts of the agent can be shown against the principal, the agency must be shown ( Harrisburg Lumber Co. v. Washburn, 29 Or. 150, 44 P. 390; Connell v. McLoughlin, supra; Wicktorwitz v. Insurance Co., 31 Or. 569, 51 P. 75; Hannan v. Greenfield, 36 Or. 97, 58 P. 888; Sloan v. Sloan, 46 Or. 36, 78 P. 893; Toomey v. Casey, 72 Or. 290, 142 P. 621).

The main and only important question in this case is: Did the plaintiff produce or tender any competent evidence tending to show that M. D. Campbell was acting as the agent of Floyd J. Campbell in the transaction set forth in the complaint? To determine this we will examine the testimony. Plaintiff, Oscar L. Smith, testified in substance as follows:

"I told him [Floyd J. Campbell] I had heard he wanted some one to saw some wood; that he had bought a drag-saw, and he said he had. He said he wanted some one to take the contract of cutting all the wood on 40 acres that he owned out near Sherwood, and wanted to know what I could cut it for. I told him I would have to see the timber first. He said that I could go and look over the timber and he had the drag-saw, and he would sell me the drag-saw at $325 and pay for it at so much a cord. So on the following day I went up and the son, Mr. Mart Campbell, was there, and we agreed to go out and look over the timber, and we went out there."

Mr. Smith stated that they met and agreed upon the terms of the contract. As to the conversation had with Mr. Floyd Campbell in regard to the signing of the agreement the witness testified thus in part:

"Well, I went up to Mr. Campbell's office, and he showed me the contract he had fixed up and I read it over, and I seen it was made in Mr. Mart Campbell's name. * * * Well, I asked him about the contract, or whose it was, and he said he was responsible for everything, he just put the boy's name in there, and he was going to handle that end of it in the woods, and he would be responsible for everything, and naturally it was his contract."

Lewis Gillis, a witness to the contract, testified to the effect that Floyd J. Campbell said the agreement was his; that he would "stand for all" and pay all bills.

It was the contention of the defendant that the evidence tended to show a promise on the part of Floyd J. Campbell to answer for the default of his son, and the court struck out the evidence. The jury might reasonably have found from the testimony, had it been submitted to them, that it was the debt and contract of Floyd J. Campbell, for whom plaintiff did the work. The salient feature of the evidence, however as to the agency of Mart D. Campbell was the statement of Floyd J. Campbell that "he would have him (Mart D. Campbell) look after it" ...