Sorenson v. Smith

• Decision Date: 29 April 1913
• Citation: 65 Or. 78,131 P. 1022
• Parties: SORENSON v. SMITH.
• Court: Oregon Supreme Court

131 P. 1022

65 Or. 78

SORENSON v. SMITH.

Supreme Court of Oregon

April 29, 1913

On petition for rehearing. Denied.

For former opinion, see 129 P. 757.

MOORE, J.

It is maintained in a petition for rehearing that, since no exception was taken to the introduction of any testimony tending to establish the plaintiff's cause of action errors were committed by this court in determining that the contract sued upon was within the statute of frauds and incapable of ratification by the defendant, except by the execution of some writing adopted for that purpose and in concluding that the motion for a directed verdict in Smith's favor should have been allowed.

It was said in the former opinion that the request for a directed verdict, made after all the evidence had been reviewed superseded the denial of a motion for a judgment of nonsuit interposed when the plaintiff introduced her testimony and rested in chief. Based on this deduction the petition states generally that it must be supposed that the court assumed a difference between the two motions and refused to apply to the request for a directed verdict the rules of law governing motions for a judgment of nonsuit. The latter motion probably called attention to the particular defect in the evidence whereby it was asserted that a cause of action had not been established sufficient to be submitted to the jury. The motion for the nonsuit having been denied, the deficiency in the evidence, to which notice had been attracted would be remedied if possible by the introduction of testimony on the particular subject.

A motion for a judgment of nonsuit and a motion for a directed verdict in the defendant's favor are tantamount to demurrers to the evidence, and the same rule for determining the sufficiency of the testimony is alike applicable to each. A motion for a directed verdict for the defendant, however is generally less hazardous to the plaintiff's rights than is a motion for a judgment of nonsuit.

In the former opinion the testimony admitted without exception was deemed competent, and it was also considered that the statute of frauds as far as it related to Sorenson's employer was waived by not objecting to the admission of testimony tending to show that the contract sued upon was not evidenced by any writing. From an original examination of the entire transcript of the evidence it was not thought, nor from a re-examination thereof is it now believed,...