Wait v. Wheeler & Wilson Mfg. Co.

• Decision Date: 19 December 1892
• Citation: 31 P. 661,23 Or. 297
• Parties: WAIT v. WHEELER & WILSON MANUF'G CO.
• Court: Oregon Supreme Court

31 P. 661

23 Or. 297

WAIT v. WHEELER & WILSON MANUF'G CO.

Supreme Court of Oregon

December 19, 1892

Appeal from circuit court, Marion county; R.P. BOISE, Judge.

Action commenced before a justice of the peace by the Wheeler &amp Wilson Manufacturing Company against T.B. Wait on a note. A judgment sustaining a demurrer to the answer was affirmed by the circuit court, and defendant appeals. Affirmed.

The other facts fully appear in the following statement by BEAN J.:

On January 23, 1892, the respondent commenced an action at law in a justice's court against the appellant to recover the sum of $106 and interest on a promissory note executed by appellant on the 20th day of November, 1890. To the complaint, which is in the usual form, the appellant filed the following answer: "This day comes said defendant, by Bonham & Holmes, his attorneys, and for answer to plaintiff's complaint on file herein denies that no part of said note set out in plaintiff's complaint has been paid, except the sum of $53, paid on said note on or about the 22d day of October, 1891. Denies that there is now due or owing from defendant to plaintiff the sum of $106, or interest, as claimed, or any other or greater sum than is hereinafter stated and admitted. And for a further and separate answer and defense herein, and counterclaim defendant alleges that in the month of September, 1890 plaintiff, by its agents, undertook and agreed with defendant to furnish him a good and reliable man to assist him (defendant) in the sale of the sewing machines, for the payment of which said note sued upon was given by defendant to plaintiff; that plaintiff, through its agents, assured defendant that it would not recommend or furnish to him a man to assist him in the sale of said sewing machines until they could find one whom they could safely recommend as a strictly honest, trustworthy, and competent man for such business that defendant was, during the years 1890 and 1891, engaged in handling and selling the Wheeler & Wilson sewing machines for plaintiff, and to induce him (defendant) to continue in said business, and with a view to persuade defendant that it (plaintiff) would make such business profitable to defendant, he was induced to and did take into his employment one H.W. Fisk, about whom defendant knew nothing as to his honesty or competency as an agent, to travel and sell said sewing machines, but, relying alone upon plaintiff's guaranty and assurance that said Fisk was an honest and trustworthy man, defendant took him into his employment, and, reposing trust and confidence in him, gave into his possession and control a number of sewing machines, (3 in number,) which he (the said Fisk) sold, and, instead of paying over and accounting to the defendant for the proceeds thereof, as he agreed to do, he feloniously appropriated and embezzled the sum of $84, which rightfully belonged to defendant, and surreptitiously left the country, and his whereabouts are unknown to defendant. Defendant further avers that said Fisk, at the time plaintiff furnished and recommended him to this defendant as an honest and reliable man to employ in such service, was, and ever since has been, a dishonest bankrupt, financially and morally, and defendant has been unable to recover from him the money by him misappropriated as aforesaid; and plaintiff, at the time it recommended said Fisk to defendant as an honest and trustworthy man, and induced defendant to engage him in his service as such, plaintiff either knew nothing about him, or knew him to be dishonest and untrustworthy. That while said Fisk was so engaged in defendant's employment as aforesaid defendant lost by him $21 for three weeks' use of defendant's team, and the further sum of $3 for the feed of said team during said period of three weeks; and the further sum of $30, which would have been the reasonable and fair profits coming to defendant on the sale of said three sewing machines, the purchase price of which was misappropriated by said Fisk as aforesaid; making, in all, the sum of $165, which is justly due defendant from plaintiff, less the amount claimed by plaintiff on the note sued upon, and for which difference between the said sum claimed by plaintiff and the said sum due defendant as aforesaid defendant prays judgment against plaintiff, and for the costs and disbursements...