Toy v. Gong

• Decision Date: 19 February 1918
• Citation: 87 Or. 454,170 P. 936
• Parties: TON TOY v. JOHN GONG.
• Court: Oregon Supreme Court

170 P. 936

87 Or. 454

TON TOY v. JOHN GONG.

Supreme Court of Oregon.

February 19, 1918

In Banc.

Appeal from Circuit Court, Marion County; Percy R. Kelly, Judge.

Action by Ton Toy against John Gong. Judgment for plaintiff, and defendant appeals. Affirmed.

Ton Toy filed a complaint on February 19, 1916, alleging that between March 1, 1915, and November 18, 1915, he rendered services as a farm hand and overseer at the special instance and request of the defendant, and " that for said services the defendant promised and agreed to pay plaintiff the reasonable salary of seventy-five ($75.00) dollars per month."

The defendant answered, and also filed a complaint in the nature of a cross-bill in equity alleging, in substance, that Ton Toy and John Gong were partners, and that the services for which Ton Toy was attempting to recover a judgment in the action at law had been rendered by Ton Toy as a partner and for the partnership. The cross-bill prayed for an accounting and a dissolution of the partnership. The suit in equity proceeded to trial, and on December 30, 1916, resulted in a decree dismissing the suit. John Gong appealed from the decree by serving and filing a notice of appeal on February 21, 1917 and by serving and filing an undertaking on appeal on February 26, 1917. Upon the application of Gong, the time for filing the transcript was extended until May 1, 1917. The appeal resulted in an opinion, rendered July 3, 1917 affirming the decree of the circuit court. Gong v Toy, 166 P. 50.

On April 17, 1917, Gong filed an amended answer in the action at law alleging that Ton Toy and John Gong were partners, and that the services rendered by Ton Toy had been performed by him as a member of the partnership, and not as an employé of John Gong. Ton Toy replied to the amended answer on April 21, 1917, and pleaded the decree in the suit in equity as an adjudication of the claim of partnership which John Gong had pleaded as a defense to the complaint. The action at law was tried on April 21, 1917, and terminated in a verdict and judgment for Ton Toy. John Gong appealed from the judgment.

In action at law for wages, wherein plaintiff was required to elect whether to proceed on contract price or for reasonable value of services, recovery may be had upon quantum meruit although evidence as to express hiring was introduced stipulated price in such case becoming quantum meruit.

Smith & Shields and W. C. Winslow, all of Salem, for appellant.

Carson & Brown, of Salem, for respondent.

HARRIS, J. (after stating the facts as above).

One of the assignments of error arises out of the refusal of the court to receive in evidence the notice of appeal, the undertaking on appeal, the motion for and the order allowing an extension of time for filing the transcript. The contention of the defendant is that the appeal from the decree stayed further proceedings in the action at law until a final decision by the appellate court of the suit in equity. The filing of the cross-bill, by force of section 390, L. O. L., automatically and without the aid of an injunction by a court stayed the proceedings at law until the circuit court rendered a decree in the suit. There is language in Oatman v. Epps, 15 Or. 437, 439, 15 P. 709, which supports the position taken by the appellant, but the language referred to was not necessary to a decision of that case, and for that reason may be regarded as obiter dictum; and, moreover, the question may now be regarded as removed from the field of debate, for, after a careful consideration of the statute, this court speaking through Mr. Justice Moore in Donart v. Stewart, 63 Or. 78, 80, 126 P. 608, 609, held that:

" The arrest of the proceedings in the action which thus results by operation of law is tantamount to the service of an interlocutory injunction, which, when dissolved by a dismissal of the suit in equity, is not revived by taking an appeal from the decree rendered therein."

Broad statements amounting to generalizations may be found in some precedents which, if literally construed and applied, might seem to incline to the view that an appeal from the decree stays the action, but those cases must be read in the light of the facts which were involved, and when so read it will be ascertained that reference is made to the decree in the circuit court rather than to a decree in the Supreme Court. Of course, as ruled in Brice v. Younger, 63 Or. 4, 6, 123 P. 905, 906:

If the circuit court permits " the trial of the law action to proceed pending the appeal, it will be at plaintiff's peril; for, if the appellate court shall reverse the appeal and direct that the action be perpetually enjoined, he would be thereby deprived of the benefit of the judgment, if one is obtained, by such decree."

The opinion in Oregon Surety and Casualty Co. v. Paulson, 73 Or. 163, 166, 144 P. 571, and the opinion in Noyes-Holland L. Co. v. Pacific L. & L. Co., 84 Or. 386, 389, 165 P. 236, afford illustrations of the recent application of the principle established in Donart v. Stewart, 63 Or. 76, 126 P. 608.

Several assignments of error are predicated upon the contention that the decree of the circuit court did not preclude John Gong from offering evidence in the action at law to sustain the defense of partnership pleaded by him. All the papers constituting the judgment roll in the suit in equity, including the cross-bill, answer, findings of fact, conclusions of law, and decree were received in evidence. The cross-bill contained an allegation that Ton Toy and John Gong were partners, and that the services for which Ton Toy was attempting to recover in the action at law had been performed by him as a partner and for the partnership; and the prayer was for an accounting and a dissolution of the partnership. Ton Toy answered the cross-bill with a general denial. The findings of fact recite a trial, and that " after hearing and considering all the evidence offered by the parties" the court finds:

" That there never was a partnership existing between the parties to the above-entitled suit nor any other relation than that of master and servant existing between said parties."

And as a conclusion of law the court found:

" That defendant is entitled to a decree dismissing the suit."

After stating that the trial occurred at a certain date and naming the attorneys who appeared for the respective parties, the decree reads thus:

" And the court, being fully advised, made and filed certain findings of fact and conclusions of law whereby and wherefrom it appears that defendant is entitled to a decree dismissing this suit."

The amended answer upon which the action at law was tried contains a denial of the allegations of the complaint " except as herein alleged." This denial is followed by an allegation that Ton Toy and John Gong were partners and another allegation that the services rendered by Ton Toy were rendered under the partnership agreement.

It is true that the decree merely discloses that the " suit be, and the same is hereby dismissed," but it is also true that it recites that the court " filed certain findings of fact and conclusions of law whereby and wherefrom it appears that defendant is entitled to a decree dismissing the suit." The primary issue presented by the pleadings was whether the parties...