Sturtevant v. Dowson

• Decision Date: 22 January 1924
• Citation: 110 Or. 155,222 P. 294
• Parties: STURTEVANT v. DOWSON ET AL. [*]
• Court: Oregon Supreme Court

222 P. 294

110 Or. 155

STURTEVANT v. DOWSON ET AL. ^[*]

Supreme Court of Oregon

January 22, 1924

Department 1.

Appeal from Circuit Court, Lane County; G. F. Skipworth, Judge.

On petition for rehearing. Former opinion set aside and case remanded for new trial.

For former opinion, see 219 P. 802.

H. E. Slattery, of Eugene, for appellants.

F. E Smith, of Eugene, for respondent.

McBRIDE C.J.

This is a petition for rehearing, in which the correctness of the opinion published in 219 P. 802 (not yet officially reported) is challenged.

We there held that in cases of this character, in order that a counterclaim could be pleaded under section 74 Or. L., it should be one existing at the time of the commencement of the action. The opinion was rendered by the writer of this opinion, and, the case not being throughly briefed, it was there held that, in order to constitute a valid counterclaim, the cause of action arising under the counterclaim should have existed at the time of the commencement of the action. Upon a petition for a rehearing the case has been thoroughly briefed and carefully examined and the writer now finds that the cases there cited by him in support of his opinion were cases arising under subdivision 2 of section 74, and were not applicable to cases arising under subdivision 1, and that he was wrong.

The great weight of authority under statutes similar to ours is to the contrary. 23 Standard Encyc. Procedure, 707; Slaughter v. Machine Co., 148 N.C. 471, 62 S.E. 599; Caspary v. Hatch, 157 A.D. 679, 142 N.Y.S. 785; Howard v. Johnston, 82 N.Y. 271; Californian Canneries Co. v. Pacific S. Metal Works, 164 F. 978, 91 C. C. A. 106; Smith & Co. v. French, 141 N.C. 1, 53 S.E. 435. Therefore we are constrained to hold that the alleged counterclaim was properly pleaded and should have been considered by the court, as, in fact, it was.

The only error that we find was the refusal of the court to allow the testimony of the defendant Moyer to the effect that he knew the value of the good will of the business and to testify to such value. It is very difficult to approximate the value of good will, and while we are still of the opinion that the conditions being shown--the situation of the premises, the amount of patronage, and the general conditions existing at the time--are stronger evidence than the opinion of a so-called interested expert, yet the authorities seem to be generally to the effect that such testimony is admissible for what it is worth. White v. Jones, 79 A.D. 373, 79 N.Y.S. 583, 587; In re Randell's Estate (Sur.) 8 N.Y. Supp. 652, 657; Mueller's Estate, 190 Pa. 601, 602, 42 A. 1021.

While the refusal of such testimony in the particular case, and especially from a person who did not seem to have been able to so conduct the business, even while he had all the benefits of the good will transferred to him by his grantors as to be able to do anything toward the payment of the property he had purchased, yet it was technically admissible and might have had some effect upon the jury in increasing to some extent the deductions which the jury allowed the defendants. But that was a question for...