Walker v. Griffin
| Decision Date | 12 November 1959 |
| Citation | 218 Or. 613,346 P.2d 110 |
| Parties | John E. WALKER, Trustee in Bankruptcy of Loren Garrett, dba Garrett Sand and Gravel, Bankrupt, Appellant, v. Troy GRIFFIN, Respondent and Cross-Appellant. |
| Court | Oregon Supreme Court |
Robert W. Collins, Pendleton, argued the cause for appellant. On the briefs were Fabre, Collins & Kottkamp, Pendleton.
Edward Joel Clark, Pendleton, argued the cause for respondent and cross-appellant. On the brief were Peterson, Clark, Clark & Peterson, Pendleton.
Before McALLISTER, C. J., and PERRY, SLOAN, O'CONNELL, REDDING and KING, JJ.
This is an action for breach of contract, which was heard by a jury and its verdict returned in the amount of $16,617.22, the exact amount prayed for in the complaint.
This verdict was returned on June 3, 1958, and judgment on the verdict was entered on June 9, 1958. On June 13, 1958, defendant filed a motion for new trial. The court, on July 18, 1958, filed its memorandum opinion and thereafter, on July 23, 1958, entered an order setting aside the verdict and judgment and granting a new trial. From this order the plaintiff brings this appeal.
The question at issue here is: Was the new trial properly granted?
For some time prior to June 16, 1957, the plaintiff, Loren E. Garrett, had been operating a sand and gravel business in Pendleton, Oregon. Willard F. Stratton was the principal contractor to furnish the United States Ordnance Depot at Ordnance Oregon, certain crushed rock as specified in his contract.
After the appeal was filed, the plaintiff Loren E. Garrett, was adjudged a bankrupt, and John E. Walker, trustee in bankruptcy, was substituted as plaintiff.
The defendant, Troy Griffin, was a subcontractor under Willard F. Stratton, and the plaintiff contracted with Troy Griffin to quarry and crush the rock for Griffin at the quarry site at Arlington, Oregon.
The plaintiff submitted a bid of $1 per yard for crushing the first 20,000 yards of the rock and 75cents per yard for additional yardage above that amount. The plaintiff claims he contracted to produce 55,800 yards of crushed rock. Defendant claims that the agreement was for an indefinite amount as needed by the Ordnance Depot. The contract between the plaintiff and the defendant was not in writing, except as to the bid itself.
After the production of some 10,000 or 11,000 yards, the operation was stopped. The plaintiff claims the closure was the fault of the defendant, and the defendant claims it was closed by the plaintiff voluntarily and on account of plaintiff's financial difficulties. At a later date the Willard F. Stratton contract with United States Ordnance Depot was cancelled by the latter party.
As mentioned before, the jury returned a verdict for the plaintiff, and this verdict was set aside and a new trial granted by the court; this appeal is from that order granting new trial.
The one and only assignment of error by the plaintiff is as follows:
'The Court erred in sustaining the Motion for new trial, which said Motion for new trial is set forth verbatim in the abstract herewith filed.'
The first claim in the motion for a new trial is as follows:
Exhibit 'A' reads:
'Affidavit
'State of Oregon County of Umatilla} SS
'I, Chauncey Hacker, being first duly sworn, do depose and say:
'1. That I am the Post Engineer in charge of Plans and Projects Section of the Depot Facilities Division of Umatilla Ordnance Depot.
'2. That Robert S. Foreman, who is that same person as Robert S. Foreman, juror in the trial of Loren E. Garrett v. Troy Griffin in the Circuit Court of the State of Oregon for Umatilla County, tried June 2 and 3, 1958, is an employee under my supervision and charge.
'3. That Mr. Foreman, as a member of the Plans and Projects Section had a personal and intimate knowledge of, and aided in the preparation of, the plans, specifications and other matters in relation to UOD Purchase Order on Contract No. DA 35-11-ORD 117, which purchase order and contract is that same contract as was awarded to Willard F. Stratton on or about June 28, 1957, and for which the Plaintiff, Mr. Garrett, was crushing gravel as a subcontractor under Mr. Griffin.
'4. That Mr. Foreman prepared and maintained progress reports and other material in relation to the operation and termination of this job.
'5. That he had personal knowledge that the contract had been terminated.
'6. That as a member of the Post Engineer's Staff, he has been exposed to numerous false and scurrilous rumors, relating directly to this said contract, some of which rumors are as follows:
'a. That Col. Guthrie, the contracting officer at the time of said contract, Mr Stratton and Mr. Griffin were partners in the operation of this contract.
'b. That Col. Guthrie was an owner of the mineral deposit from which the subject matter of the contract was processed.
'c. That Willard F. Stratton, the prime contractor, was using government equipment in the development of this mineral deposit.
'd. That there were numerous other false tales and rumors in the area and about the Post Engineer's staff.
'7. That the Post Engineer's Staff and various other departments of the Umatilla Ordnance Depot were subject to an extensive FBI investigation, involving at least five agents and covering a considerable period of time, and thereafter these same departments were subjected to an Inspector General's investigation all in relation to this contract and various other matters. That this investigation grew out of the false rumors above stated.
'8. That the initials 'R.S.F.' on the plans in detail on Sheet No. 1 of 1 MUO-3-1/23, which are hereto attached and marked 'Exhibit 1' are the initials of Robert S. Foreman. That these plan are related to the aforesaid UOD contract between the Depot and Willard F. Stratton.
'[Sgd.] Chauncey R. Hacker Affiant
'Subscribed and Sworn to before me this 5 day of June, 1958.
'[Sgd.] Edward Joel Clark
My Commission Expires: 11/23/58.'
Exhibit 'B' reads:
'Affidavit
'State of Oregon County of Umatilla} ss.
'I, Troy Griffin, being first duly sworn, do depose and say:
'1. That I am the Defendant in the within entitled action. That I was present at the voire dire examination of Robert S. Foreman, juror No. 12 in the trial of the case, Loren E. Garrett v. Troy Griffin, in the Circuit Court of the State of Oregon for Umatilla County, tried June 2 and 3, 1958. That upon said examination Mr. Foreman stated that he had no information or knowledge in relation to the subject matter of this action, which would tend to influence him one way or the other; that he could approach this case with an open and free mind, and that he knew nothing of either of the parties involved here.
'2. That at the time of said examination and during the trial of this cause, I did not know that Mr. Foreman had any part in the preparation of any of the plans or specifications in relation to the Ordnance Contract on which Mr. Garrett was a subcontractor under me.
'3. That after the trial and verdict, I was informed by Mr. Chauncey Hacker, that he had heard of the verdict from Mr. Foreman upon his return to work after the trial on June 3, 1958; that Mr. Foreman was employed in that office and intimately connected with this contract.
'4. Mr. Foreman was chosen to replace the subject of my third and last preemptory challenge and from his answers on voire dire examination, there appeared no basis on which to challenge him for cause.
'[Sgd.] Troy Griffin
'Subscribed and Sworn to before me this 5 day of June, 1958.
'[Sgd.] Edward Joel Clark
My Commission Expires: 11/23/58.'
The motion for new trial then set forth a number of other grounds, which we will not set forth at length.
In answer to the two affidavits set forth by the defendant, the plaintiff filed an affidavit by the juror, Robert S. Foreman, as follows:
'Affidavit
'State of Oregon County of Umatilla} §§
'I, Robert S. Foreman, being first duly sworn on oath depose and say:
'That I was a member of the jury in the case of Loren E. Garrett, dba Garrett sand and gravel, plaintiff, vs. Troy Griffin, defendant, in the Circuit Court of Umatilla County, Oregon, wherein a verdict was rendered and returned June 3, 1958, in favor of the Plaintiff and against the Defendant.
'That prior to the trial of the above cause, I was not acquainted with either the Plaintiff or the Defendant and knew nothing of the contract between Plaintiff and Defendant. I had not at such time heard of the dispute between the Plaintiff and Defendant.
'That at the voire dire examination of myself prior to the trial of the above case I stated that I was employed by the United States Government at Ordnance, Oregon. At such time I also stated the nature of my employment and that I had no knowledge of the matters involved in said case. That said statements were true to the best of my knowledge and belief at said time.
'That I now know that I did assist in preparation of the plans for the use of the material producted by Garrett Sand and Gravel. I did not recognize or connect the contract between the Plaintiff and Defendant at the time of the voire dire examination and the plans which I had prepared as an employee of the United States Government.
'That at the time of said examination prior to the trial of said case, I did not connect or associate any of the parties to said case with any rumors I had heard in regard to Col. Guthrie, the contracting officer formerly stationed at Ordnance, Oregon. That any rumors I had heard in regard to Col. Guthrie did not influence me in my...
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