Wallace v. American Toll Bridge Co.

• Decision Date: 14 February 1928
• Citation: 124 Or. 179,264 P. 351
• Parties: WALLACE v. AMERICAN TOLL BRIDGE CO.
• Court: Oregon Supreme Court

264 P. 351

124 Or. 179

WALLACE v. AMERICAN TOLL BRIDGE CO.

Supreme Court of Oregon, En Banc.

February 14, 1928

Appeal from Circuit Court, Multnomah County; Ashby C. Dickson Judge.

Action by Guy L. Wallace against the American Toll Bridge Company. Judgment for plaintiff, and defendant appeals. Modified, and affirmed as modified.

F. S. Sever and T. B. Handley, both of Portland, for appellant.

Will H Masters, of Portland, for respondent.

ROSSMAN J.

This is an action upon a parol contract wherein plaintiff sought judgment for $3,803 for commissions upon the sale of capital stock in defendant corporation. The answer denied the alleged contract, and denied that plaintiff made any sales. Only three assignments of error are argued in appellant's brief. One charges that the court erred in admitting over the objections of defendant the depositions of four witnesses. The other alleges error in the instructions given to the jury. The evidence showed that one E. V. Vachon plaintiff's assignor, made several sales of shares of the capital stock of defendant. In all these sales the entire, or a very substantial portion, of the purchase price was discharged by accepting other securities. The defendant contended that these sales were not made in its behalf; that the stock thus disposed of was the property of one O. H. Klatt, its vice president, and that Vachon made the sales as Klatt's agent under an agreement with him. It admitted in the course of the evidence that it had hired the plaintiff to sell stock, but claimed that the authority conferred permitted him to accept as payment money only. Upon this phase of the case, the court, after reviewing for the jury the pleadings, instructed the jury:

"You are instructed that, before plaintiff can recover in this action, he must establish to your satisfaction, by a preponderance of the evidence, that E. V. Vachon was employed to sell its stock, and that he did sell the stock of defendant according to the terms and understanding between E. V. Vachon and the defendant. * * * You are instructed that, if you find that Vachon was employed by the defendant, the American Toll Bridge Company, to sell the stock of said company at a commission of 15 per cent. of the sale price, your verdict should be for the plaintiff, if you find that the defendant, the American Toll Bridge Company, accepted bonds or other securities from the purchasers of its stock, in the place of cash, and issued to the purchasers the stock of said defendant company. And I further instruct you, as a matter of law, that, if the defendant, the American Toll Bridge Company, did accept bonds and other securities, and issued its stock to the purchasers thereof, that the defendant, the American Toll Bridge Company, thereby accepted and confirmed the sale, and thereupon the commission for the sale was earned.

"Now, ladies and gentlemen, you have heard the testimony offered by and on behalf of defendant in which it is claimed that all the stock sold by Mr. Vachon in the defendant, American Toll Bridge Company, was the personal property of Mr. Klatt; and further that Mr. Vachon was not employed by defendant to sell its stock.

"I therefore instruct you that, after a careful consideration and comparison of all the testimony, you arrive at the conclusion that Mr. Vachon was not employed by defendant, and that the stock sold by Mr. Vachon in the defendant, American Toll Bridge Company, was the personal property of Mr. Klatt, then your deliberations would be at an end, and your verdict should be for the defendant; or, if you find that the plaintiff has not sustained the burden of proof and satisfied you by a preponderance of the evidence as I have already pointed out to you in these instructions, then your verdict must be for the defendant."

The verdict and judgment were for the plaintiff. Defendant now contends that these instructions did not sufficiently submit its theory to the jury; that they warranted a finding of only one or the other of two possible sets of facts, that is, (a) a contract between Vachon and Klatt, or (b) a contract between Vachon and defendant, and left out of consideration entirely its theory that Vachon had a contract with both the defendant and Klatt, wherein he could sell, for cash, stock on behalf of the defendant, and dispose of stock on behalf of Klatt by taking in payment securities. Defendant requested no instructions. Its only exception to the instructions was the following:

"The defendant desires an exception to that portion of the court's instructions as to the effect of acceptance of securities by the American Toll Bridge Company; said instructions not being in conformity with the evidence adduced, or reasonable in its application to such evidence.

"The Court: Exception allowed."

This exception wholly failed to point out to the trial court the matter presented to us, that is, the theory of defendant. We do not believe that any one would understand from the exception stated that the defendant was dissatisfied with the court's statement of the respective contentions of the parties.

In 3 C.J., Appeal and Error, § 639, we find:

"When an objection is made, the trial court and opposing counsel are entitled to know the ground on which it is based, so that the court may make its ruling understandingly, and so that the objection may be obviated, if possible; and therefore, as a general rule, objections, whether made by motion or otherwise, and whether to the pleadings, to the evidence, to the instructions or failure to instruct, * * * or to other matters, must, in order to preserve questions for review, be specific and point out the ground or grounds relied upon, and a mere general objection is not sufficient. The appellate court will not review a question not raised in the court below with sufficient definiteness to make it clear that there was no misunderstanding of the point ruled on. And, where a wrong reason is assigned for an objection, it is the same as if there was no objection at all."

In 1 Randall's Instructions to Juries, § 519, we find:

"While in some jurisdictions a general exception to the charge of the court is authorized, and is sufficient without pointing out in detail the specific instructions challenged, the practice of taking general and obscure exceptions to the charge at the moment, in order to cover the case and enable counsel, on subsequent critical examination, to raise points which have never been suggested at all to the mind of the trial judge, is objectionable on many grounds, and the general rule in most jurisdictions is that an exception to the instructions as an entirety is not tenable, but that, on the contrary, exceptions to the charge of the court must point out some definite or specific defect, this rule requiring, in some jurisdictions, that the grounds of the objection be stated, and ordinarily the particular part of the charge of which complaint is made should be set out or pointed out, and it is held that such rule, being mainly established for the protection of the prevailing party and being in furtherance of justice, cannot be abrogated by the practice of any trial court.

"One of the purposes of such rule being to give the court an opportunity, if convinced of error in its charge, to correct it, the test of the sufficiency of an exception is whether it fairly directs the attention of the court to the claimed error. An objection to a charge should be as definite as an assignment of error to it is required to be."

This court has held to similar effect; thus in Reimers v. Pierson, 58 Or. 86, 113 P. 436, we said:

"It is the duty of counsel complaining of the instructions of a court to point out specifically

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