Williams v. Ingle

• Decision Date: 15 February 1921
• Parties: WILLIAMS v. INGLE.
• Court: Oregon Supreme Court

195 P. 570

99 Or. 358

WILLIAMS v. INGLE.

Supreme Court of Oregon

February 15, 1921

Department 1.

Appeal from Circuit Court, Multnomah County; J. P. Kavanaugh, Judge.

Action by S. C. Williams against J. W. Ingle. From judgment for plaintiff, defendant appeals. Affirmed.

The substance of the complaint is that on July 2, 1918, the defendant held a lease upon a hotel in Portland and at that time entered into an agreement with the plaintiff to sell to the latter the lease, together with the furniture, fixtures and equipment of the hotel. The agreement is in writing and by copy is made part of the complaint, the defendant being named therein as the vendor and the plaintiff as the vendee. It contains this stipulation:

"It is further agreed that the said vendor shall have the said mentioned property in a good clean condition, including bedding, linens, and other personal property hereinabove mentioned, and that the steam heating and hot water plant and elevator machinery are in good operating condition at the time said vendee takes possession."

It is stated that the plaintiff performed everything obligatory upon him under the agreement and that he took possession on July 12, 1918. It is alleged, in substance, that when possession was surrendered to him the bedding and linen were not in a good clean condition; that the steam heating plant was not in good condition or in condition to be operated at all; and that the defendant had allowed dirt and rubbish to accumulate in the basement and some of the rooms of the building, rendering the same unfit for use or occupancy for hotel purposes. It is said that the defendant was notified of these defects and that he refused to provide against them, on account of which the plaintiff was obliged to and did remedy them, and in so doing was necessarily compelled to and did expend a total of $630.75. He also says that because of the defendant's breach of the agreement he lost patronage of the hotel and a great deal of time of himself and his employés in renovating the steam heating plant, to his further damage in the sum of $250.

The only defense interposed is a denial of the whole complaint. Prior to filing his answer the defendant demanded a sworn statement of the particular items constituting the damage to plaintiff alleged in the complaint. In response to this the plaintiff furnished a bill of particulars, reiterating the items mentioned in the complaint, except that he segregated the repairs on the hot water system into two amounts, to wit mason work, $64.10, and repair of boiler, $515. He itemized the special damage for loss of patronage into four particulars, of which it is not necessary to take further notice because the jury allowed only for the actual damages. A further motion was made before answering to require the plaintiff to make the bill of particulars more definite and certain, but this was overruled.

A jury trial resulted in a verdict for the plaintiff for $630.75 being the exact amount plaintiff alleged he was compelled to expend in renovating the linen, removing rubbish from the hotel, and repairing the heating system. From the ensuing judgment the defendant appeals.

W. T Hume, of Portland (George Estes and E. M. Morton, both of Portland, on the brief), for appellant.

F. C. Howell, of Portland (Wilbur, Spencer, Beckett & Howell, of Portland, on the brief), for respondent.

BURNETT, C.J. (after stating the facts as above).

At the trial the defendant objected to receiving any evidence respecting the items of damages claimed, on account of not receiving a detailed statement of the items sued upon, but his objection was overruled. Section 84, Or. L., reads thus:

"A party may set forth in a pleading the items of an account therein alleged, or file a copy thereof, with the pleading verified by his own oath, or that of his agent or attorney, if within the personal knowledge of such agent or attorney, to the effect that he believes it to be true. If he do neither, he shall deliver to the adverse party, within five days after a demand thereof in writing, a copy of the account, verified as in this section provided, or be precluded from giving evidence thereof. The court or judge thereof may order a further account when the one filed or delivered is defective."

In law actions under our Code of Civil Procedure this is the only authority for demanding items of an account. This, however, is not an action upon an account. It is an action for breach of a contract. It sounds in tort. The term "account" refers to items of debit and credit arising out of performance of a contract. 1 Words and Phrases, title "Account." Strictly speaking, the defendant was not entitled to any itemized statement. There was no error in receiving evidence, therefore, of the amount of damages.

The bill of exceptions abounds in assignments of error predicated upon the action of the court in refusing to compel the plaintiff to elect whether he deemed the clause of the contract already quoted a representation or a warranty, and in finally instructing the jury that the proceeding was upon a warranty. Coupled with this also is an exception to the court's allowing the plaintiff to amend the complaint by interlineation to the effect that in entering into the contract he relied upon the provision already mentioned. Warranty is defined in 40 Cyc. 492, in these terms:

"The obligation by which one contracts to defend another in some action which may be instituted against him; an agreement which refers to the subject-matter of a contract, but, not being an essential part of the contract, either by the nature of the case or by the agreement of the parties, is collateral to the main purpose of such contract; an express or implied statement of something which the party undertakes shall be part of a contract, and

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