Young v. Stickney

• Decision Date: 30 January 1905
• Parties: YOUNG v. STICKNEY.
• Court: Oregon Supreme Court

79 P. 345

46 Or. 101

YOUNG v. STICKNEY.

Supreme Court of Oregon

January 30, 1905

Appeal from Circuit Court, Clackamas County; Thomas A. McBride Judge.

Action by W.H. Young against H.O. Stickney. From a judgment for plaintiff, defendant appeals. Reversed.

This is an action to recover for services rendered, and also damages for an alleged breach of a contract. It is averred in the complaint that the parties entered into an agreement whereby plaintiff was to haul to a skidway certain saw logs to be cut by defendant, who was to pay him $1.75 per 1,000 feet therefor, and promptly to remove all such logs from the skidway, so as not to delay the performance of the work, and that plaintiff duly kept all the conditions of the agreement on his part, and delivered on the line of the skidroad 232,980 feet of saw logs, for which the defendant became indebted to him in the sum of $407.71, and had paid on account thereof only $237.13, leaving due $170.58. "For a further cause of action against the defendant, the plaintiff now repeats each and every allegation of the first cause of action herein, and further alleges that the defendant, in violation of his part in the contract, failed and refused to remove the said saw logs delivered to plaintiff on the line of said skidroad, and allowed the same to accumulate until all available skidroads and delivery ground became blocked, and plaintiff was thereby, in the performance of his said contract, put to great and unnecessary expense thereby in making such delivery, and was compelled to, and did, haul a large portion of said logs over long distances, and onto other and more difficult grounds to haul over, and was compelled to, and did, make other and different rollways and skidways for the accommodation of said logs, and to the damage of the plaintiff in the sum of two hundred dollars." The answer denied the material allegations of the complaint, and, for a further defense averred that the contract between the parties required plaintiff to prepare, haul, and deliver on the skidroad, or on skids beside it, such logs as defendant might cut and saw into proper lengths, for which he was to be paid $1.75 per 1,000 feet; that defendant felled and cut into saw logs 125,974 feet, which plaintiff prepared and delivered as stipulated, for which there became due him $220.13; that defendant also cut 86,382 feet and 9,382 feet of saw logs respectively, which plaintiff prepared, and hauled the former short distances, but did not deliver them at the places agreed upon, and the latter he did not attempt to haul, for which service defendant was willing to pay, and offered him $1 per 1,000 feet, or $86.38, for hauling the former, and 50 cents per 1,000 feet, or $4.69, for preparing the latter notwithstanding he failed to perform his part of the contract and there was nothing due him thereunder for his labor; and that the money earned by plaintiff, together with that which defendant was willing to pay him for his labor, is $311.20, of which he had received $250.80. The defendant, before the trial, served upon plaintiff an offer to allow judgment to be given against him for $60.40, but, the proposal not having been accepted, a trial was had, and the jury found for plaintiff in the sum of $170.58 on the contract, and $125 as damages; and, judgment having been rendered thereon, the defendant appeals.

Wm.T. Muir, for appellant.

Harvey E. Cross, for respondent.

MOORE J. (after stating the facts).

The plaintiff at the trial having introduced his testimony and rested, defendant's counsel moved the court for a judgment of nonsuit on the ground that the first cause of action stated in the complaint is based on an express contract, all the conditions of which, it is alleged plaintiff fully performed, while the testimony shows a nonperformance, to excuse which he relies on the defendant's alleged breach of the contract, without alleging such waiver. The motion was overruled and an exception saved, and it is contended that the court erred in refusing to grant the nonsuit. It is argued by plaintiff's counsel, however, that defendant's tender to plaintiff of the sum of $60.40 in...