Sullivan v. Carpenter
| Decision Date | 13 September 1948 |
| Citation | 184 Or. 485,199 P.2d 655 |
| Parties | SULLIVAN ET AL. <I>v.</I> CARPENTER |
| Court | Oregon Supreme Court |
8. In action in assumpsit for work, labor and materials where defendant objected to lists showing materials furnished defendant because sufficient foundation had not been laid, and evidence showed lists were made almost every morning and evening by one of plaintiffs, showing all materials taken to job and used, though sometimes several days elapsed before entries were made, and compiler testified lists were correct when made although he had difficulty refreshing memory at trial and there was no evidence of motive to misrepresent, lists were properly received. Laws 1941, c. 414, § 2.
Evidence — Time cards — Admissible
9. In action in assumpsit for work, labor and materials, time cards, objected to because not kept so as to prevent error, filled out and signed by workmen showing hours of labor and given every day to one of plaintiff's witnesses who was no job all but three days during duration of work, and saw men working and paid men on basis of time cards, were properly received. Laws 1941, c. 414, § 2.
Appeal and error — Statement of account — Irrelevant — Harmless
10. Admission of statement of the account for labor in action in assumpsit for work, labor, and materials, objected to as irrelevant because merely a copy of what had been pleaded, if error, was harmless.
Appeal and error — Motion for new trial — General rule
11. The general rule is that denial of a motion for a new trial based upon alleged errors committed on trial, of which errors appellant had knowledge at time, may not be assigned as error on appeal.
New trial — Misconduct — Jury — Irregularities — Proceedings
12. Denial of defendant's motion for a new trial because of misconduct on part of jury and irregularities in proceedings during deliberations based on affidavit of one of the jurors was not error.
New trial — Affidavits — Jurors — Impeach — Verdict
13. Affidavits of jurors may not be used to impeach their verdict.
See 32 C.J.S., Evidence, § 733
58 Am. Jur. 557
IN BANC.
Appeal from Circuit Court, Jackson County.
Hugh B. Collins, of Medford, on the brief for appellant.
O.H. Bengtson, of Medford, and Harry A. Skerry, Jr., of Ashland, on brief for respondents.
Action by Delore Sullivan and another doing business as Sullivan Brothers against C.R. Carpenter in assumpsit for labor work and material furnished at defendant's request. From a judgment for plaintiffs, defendant appeals.
AFFIRMED.
This is an action in assumpsit for work, labor and materials. The plaintiffs are copartners. They allege in their complaint that, at the request of defendant, they painted and performed other labor upon certain buildings on defendant's ranch, and furnished materials in connection with the work; that "a fair and reasonable charge for said labor and materials" was $2,088.56, of which the defendant has paid $1,293, leaving a balance of $795.56 due and owing. The defendant admitted that he requested plaintiffs to paint said buildings and that he has paid them the sum of $1,293, but denied all other allegations of the complaint. Trial by jury resulted in a verdict for plaintiffs in the full amount demanded, and judgment was entered thereon. Defendant moved for a new trial, which motion was denied, and he appeals.
Objection is made in this court, for the first time that the complaint failed to state facts sufficient to constitute a cause of action, and it is contended moreover that it will not support a recovery for work and labor performed or for materials furnished.
1-3. The complaint in an action of this sort must allege that the labor and materials were furnished at the defendant's request. It is contended that, while the complaint herein alleges that defendant requested that plaintiffs paint certain structures and buildings, it does not state that they were requested to furnish any materials, or to do paper-hanging or any work on furniture. The pleading must be considered as a whole. It is true that in one paragraph thereof there is an allegation that defendant requested plaintiffs to paint certain structures and buildings, which would appear to indicate that only painting was requested, but this allegation is modified by being immediately followed by the words: "as more fully enumerated in Paragraph IV". Paragraph IV contains a detailed statement of all the items of labor and materials, and includes one item of paper-hanging, another of "furniture labor" (included under a heading of "Brush labor"), and a small item of $8.51, described as "Glass and labor". It is, of course, obvious that those items would not usually be included within the general term "painting", although that term might very well include incidental operations other than the actual application of paint. We think, however, that the specific itemization contained in Paragraph IV qualified the general term, and that such itemized statement sufficiently notified the defendant of the basis of plaintiffs' claim, so that he was not in any manner misled.
4. It is asserted that a complaint in an action for labor and materials must allege that the items for which recovery is sought were actually furnished to the defendant, and that this complaint does not do so. The complaint does allege that the work, labor and materials were furnished upon structures and buildings on defendant's ranch, at his request. In the absence of demurrer or motion to make more definite and certain, we are of the opinion that these allegations sufficiently pleaded that the items were actually furnished to the defendant.
5. Defendant maintains that the allegation "that the sum of $2,088.56 is a fair and reasonable charge for said labor and materials" is a mere conclusion, and that, to be sufficient, the complaint should have alleged either the reasonable value or the agreed price. The allegation complained of must be considered as a defective allegation of reasonable value, sufficient, competent evidence having been received thereon, to sustain the judgment. Minter v. Minter, 80 Or. 369, 157 P. 157. The complaint in other respects being sufficient, and no demurrer thereto having been interposed, even the complete omission therefrom of allegations of reasonable value or agreed price would be considered as mere defects of statement, and as being cured by the verdict. Nicolai v. Krimbel, 20 Or. 76, 84, 43 P. 865.
6, 7. No objection to the sufficiency of the complaint having been made until after judgment, it must be liberally construed, and is entitled to the benefit of all intendments in its favor. Cooper v. Hillsboro Garden Tracts, 78 Or. 74, 83, 152 P. 488; 41 Am. Jur., Pleading, section 404.
"* * * The general rule in such case is ...
To continue reading
Request your trial
-
Hancock v. Crouch
...Co., 67 Cal.App.2d 763, 155 P.2d 643, 650-651(8, 9); In re Deakyne's Estate, 166 Pa.Super. 527, 72 A.2d 616, 617(4); Sullivan v. Carpenter, 184 Or. 485, 199 P.2d 655, 658(8, 9); Douglas Creditors Ass'n v. Padelford, 181 Or. 345, 182 P.2d 390, 393-395(1-6); Tsibikas v. Morrof, 12 N.J.Super. ......
- Tucker v. Lombardo
-
Kelly v. Tracy
...in its favor. Tauscher v. Doernbecher Mfg. Co., 153 Or. 152, 56 P.2d 318; Keegan v. Lenzie, 171 Or. 194, 135 P.2d 717; Sullivan v. Carpenter, 184 Or. 485, 199 P.2d 655; Medford v. Pacific National Fire Ins. Co., 189 Or. 617, 219 P.2d 142, 222 P.2d 407, 16 A.L.R.2d 1181; Nicholson v. Jones, ......
-
Carlson v. Steiner
... ... of damage. Kuhnhausen v. Stadelman, 174 Or. 290, 148 ... P.2d 239, 149 P.2d 168; Sullivan et al. v ... Carpenter, 184 Or. 485, 199 P.2d 655; Keegan et al ... v. Lenzie, 171 Or. 194, 135 P.2d 717. The complaint ... ...