Smith v. Pallay

• Decision Date: 09 July 1929
• Parties: SMITH v. PALLAY ET AL.
• Court: Oregon Supreme Court

279 P. 279

130 Or. 282

SMITH v. PALLAY ET AL.

Supreme Court of Oregon

July 9, 1929

Department 1.

Appeal from Circuit Court, Multnomah County; George Tazwell, Judge.

Action by J. Le Roy Smith against M. Pallay and another. Judgment for plaintiff, and defendants appeal. Reversed and remanded with directions.

C.J. Young, of Portland (S. P. Ness, of Leaburg, and Dey, Hampson & Nelson, of Portland, on the brief), for appellants.

Loyal H. McCarthy and J. Le Roy Smith, both of Portland, for respondent.

RAND J.

This is an action to recover damages for breach of contract. From a judgment in favor of plaintiff, defendants have appealed.

In substance, the complaint alleges that on or about July 1 1927, plaintiff entered into an oral contract with defendants whereby it was agreed that plaintiff, who was then practicing law in Portland, should give up his practice, provide himself with an automobile, and go to reside with his family on one of defendants' ranches in Union county and act as manager for them of two ranches then owned by them, and also represent them as their attorney, in consideration of which defendants agreed to employ him for the period of one year at a salary of $100 per month and to furnish him with a suitable house in which to live, pasturage, and feed for one cow and one sow and their increase, and allow him to raise on said ranches and to dispose of for his own use and benefit such fruit, vegetables, garden truck, and poultry as he desired and also to permit him to engage in the practice of law in Union county so long as such practice did not seriously interfere with the performance of his duties to defendants. The complaint further alleges that he performed all of the conditions of the contract upon his part, that defendants failed to provide a suitable house for his occupancy, and that on October 28, 1927, in violation of their contract, they sold said ranches, and wrongfully discharged him from their employment, and that, because of such breach of said contract, "plaintiff has sustained damages in the sum of $5,000."

The answer in effect admitted the employment by defendants of plaintiff, and that he was to be paid $100 per month for his services, but denied that he was to be employed for any definite period of time, and alleged that his services were to continue only as long as his work was satisfactory. It alleged that, before the contract was entered into, plaintiff represented himself as an experienced and successful farmer, and stated that he could manage said ranches so as to make them profitable to defendants; that, relying upon such representations, they employed him at a salary of $100 per month; that plaintiff was not an experienced farmer, and that his services were not satisfactory; that he failed to properly harvest the crops, thereby causing great loss to defendants; that defendants sold one of said ranches and offered to continue plaintiff's employment upon the other; that plaintiff was dissatisfied with the conditions under which he was working, and voluntarily quit his employment; that plaintiff has been paid in full for all services performed. The answer further alleged that plaintiff, before entering into the contract, had examined the premises and inspected the buildings thereon, and was given his choice of the buildings for the occupancy of himself and family.

The reply admitted that plaintiff had inspected the ranches and examined the buildings thereon before entering into said contract; that plaintiff had been paid in full up to the time of his discharge, but denied that plaintiff had voluntarily given up his employment, and it alleged that he had been ordered by defendants to surrender possession of the ranches and to return to Portland before quitting defendants' employment.

During the trial, plaintiff was permitted, over defendants' objection and exception, to state that he had been damaged by the breach of the contract in the sum of $5,000. This ruling was reversible error. The verdict was for $3,250, an amount which was far in excess of any damage which could naturally or would necessarily result from the breach by defendants of the contract in question. Under the allegations of the complaint, if plaintiff had been permitted to perform, he could only have received for his performance the sum of $1,200, and have been furnished with a suitable house in which to reside and the privilege of pasturing and feeding a cow and a sow and their increase, and of raising and selling fruit, vegetables, garden truck, and poultry. There was no allegation or evidence that plaintiff raised, or contemplated the raising, of any fruit, vegetables, garden truck, or poultry, or that he kept a cow or sow.

Under the proof offered, the measure of damage would be the difference between the amount paid as salary and the amount agreed to be paid for the entire term and compensation for plaintiff's loss of a suitable house, such as that contemplated by the contract, in which to live for the remainder of the term. There was, therefore, no basis either under the allegations of the complaint or proof offered upon which a verdict for $3,250 could be sustained.

It is settled law in this state that a witness cannot be permitted to give his opinion of the amount of the damage resulting from an act or omission complained of, and that, where such opinion has been given in a case the judgment must be reversed unless the verdict is for so small an amount that it is apparent that the error was harmless. Such was the holding in Burton v. Severance, 22 Or. 91, 29 P. 200, in an opinion written by Mr. Chief Justice Lord; United States v. McCann, 40 Or. 13, 66 P. 274; Pacific Livestock Co. v. Murray, 45 Or. 103, 76 P. 1079; Pacific Ry. & Nav. Co. v. Elmore Packing Co., 60 Or. 534, 120 P. 389, Ann. Cas. 1914A, 371; Daniels v. Northern P. Ry. Co., 88 Or. 421, 171 P. 1178. In each of those cases the judgment was reversed either upon this ground alone or else in conjunction with other errors. The reason for the rule which excludes opinion evidence of the amount of the damage sustained is that the law determines the measure of damage in every case. The question of the amount of damage in a given case is always a mixed question of law and fact. It is the province of the court to instruct the jury as to the true measure of damage, and it is then the duty of the jury to apply the rule given by the court in fixing the amount. For a witness to state his opinion of the amount of the damage in any case is a clear invasion of the province of the jury, and for that reason it is not admissible. It is not admissible also, for the reason that the opinion presumably is not based upon, or controlled by, the measure of damage prescribed by law in the given case. While it is never competent for a witness to give his opinion of the amount of the damage, there are cases such as French v. Cresswell, 13 Or. 418, 11 P. 62, and Montgomery v. Somers, 50 Or. 259, 90 P. 674, where, notwithstanding such error, the judgment was upheld, for the reason that it was apparent from the small amount of the verdict that the error was harmless.

Defendants also assign as error the submission by the court to the jury of special damages which were not alleged in the complaint The only damages alleged in the complaint were general damages; there being no allegation of any special damage.

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