Strong v. Kamm

• Decision Date: 11 January 1886
• Citation: 13 Or. 172,9 P. 331
• Parties: STRONG v. KAMM and others.
• Court: Oregon Supreme Court

9 P. 331

13 Or. 172

STRONG v. KAMM and others.

Supreme Court of Oregon

January 11, 1886

Thos. N. Strong, for respondent.

Joseph Simon, for appellants.

THAYER J.

The respondent commenced an action against the appellants to recover a balance of $464.42 alleged to have been due from the appellants to one William Stevens upon a sale of a tract of land to them by the said Stevens, and that the claim therefor had been assigned by the latter to the respondent. It appears from the pleadings in the action that the price of the land sold was $10,000; that the appellants were to pay said price by the transfer to the said Stevens of other real property, by assuming two mortgages upon the land conveyed to them, and the balance, being said $464.42, to be paid either to the said Stevens, or to a firm in Vancouver known as Moore, Stevens & Bro.; the respondent claiming in his complaint that said balance was to be paid to Stevens; the appellants claiming in their answer that it was to be paid to the said Moore, Stevens & Bro., and that they had duly paid it to the said firm. This is the only issue presented by the pleadings to the court below for trial. The respondent having by his reply denied the appellants' allegations in their answer that said balance was to be paid to said firm, or that such payment had been made, or that said appellants were authorized or empowered by said William Stevens to pay Moore Stevens & Bro. the same, the case was tried by said circuit court, and a jury duly impaneled, who returned a verdict in favor of the respondent for said balance, and upon which the judgment appealed from was entered. The appellants claimed upon the trial in the court below that this balance was to be paid by giving credit, upon the books of the firm of Moore Stevens Bros. & Co., to Moore, Stevens & Bro and charging the appellants with said sum; the appellants and Moore, Stevens & Bro. having been, prior to that time partners and interested in said firm of Moore, Stevens Bros. & Co. There was no allegation in the answer of such fact; but it seems to have come out on the proof. In order to show that said credit had been given upon the books of the firm of Moore, Stevens Bros. & Co., the appellants called as a witness one James A. Snodgrass, who testified that he had been the book-keeper for the said firm of Moore, Stevens Bros. & Co., and still had charge of the books of account of said firm; that said firm was dissolved; that prior to and upon such dissolution it was agreed by the members of the firm that said witness and the appellant Brown should collect all the accounts due the firm, and settle up its business, and that they had since that time been so engaged; that early in October, 1883, the appellant Brown, and A.S. Moore, who had been a member of said firm, came to the office of the witness, and, after computing the amount that would be due of the purchase price of the said land conveyed to appellants, and ascertained the balance aforesaid, directed said witness to credit Moore, Stevens & Bro., upon the books of Moore, Stevens Bros. & Co., with such balance, and to charge the appellants therewith; that thereupon said witness proceeded to make and made therein an entry which, when produced, read as follows:

Moore, Stevens & Bro., Cr.

By cash paid S.W. Brown to apply on account, $464 42

Entered under date of October 4, 1883.

The said entry was read to the jury. The appellant's counsel then asked the witness, in substance, if, when he received money from any person, and gave such person credit therefor on the book in which the accounts were kept, and stated in such credit entry the name of the person to whom the money credited was paid, whether he regarded that statement as a charge against the person so receiving the money, without any further formal charge against him in such book. Also what was the witness' understanding of the entry made by him, by direction of A.S. Moore and S.W. Brown, of $464.42 to Moore, Stevens & Bro., cash paid S.W. Brown, as to its being a charge to Brown for that sum, according to his system of book-keeping. The respondent's counsel objected to each of said questions, and the court sustained the objection, and saved the appellants' exception to the ruling. William Stevens, the assignor, was not shown to have been a member of the firm of Moore, Stevens & Bro., or of that of Moore, Stevens Bros. & Co. The parties having both rested, the appellants' counsel asked the court to give the following instruction to the jury: "If you believe from the evidence that Kamm and Brown so understood the contract entered into with Stevens that they were not to pay any part of the consideration for the purchase of Stevens' farm in money, then the plaintiff cannot recover in this action,"--which the court refused, and the appellants' counsel saved an exception to the ruling.

The circuit court also instructed the jury that "the evidence introduced by the defendant tends to show that the contract, if there was one, was that Brown and Kamm were to pay an indebtedness of Moore, Stevens & Bro., or a portion of it, so far as this would pay it, to this mill company. That contract, if there was such a one, could not have been enforced by Moore, Stevens & Bro. against Kamm and Brown because it was not in writing;" to which the appellants' counsel excepted. The said court further instructed the jury that "it was conceded that the contract...