BAY CREEK LUMBER AND MFG. CO. v. Cesla

324 P.2d 244, 322 P.2d 925, 213 Or. 316, 1958 Ore. LEXIS 285

Opinions

PER CURIAM.

(1)

This is an appeal in an action for the conversion of certain rough lumber which the plaintiff respondent, Bay Creek Lumber and Mfg. Co., a corporation, delivered to the defendants appellant, Carl Cesla and Fred Grabrielson, co-partners, doing business as St. Johns Planing Mill, in Portland, Oregon. The deliveries made over a period of approximately six months in 1951 consisted of 199 truck loads and were received by the defendants for the purpose of planing and then returned to plaintiff on demand or sold for plaintiff’s use and benefit.

Acting pursuant to ORS 17.720, the parties consented that the cause be submitted to a referee to hear and determine all issues of law and fact and thereafter make a report of his decision to the court.

Both parties concur that the legal relationship subsisting between them was one of “consignment” or “bailment for sale.” Agreements of this character are aptly described in 6 Am Jur 202, Bailments § 39. Also see 8 CJS 274, Bailments § 27.

The referee found all truck loads accounted for except four, representing an aggregate of 25,225 board feet, of a value of $58.42 per thousand board feet. The trial judge followed the findings of the referee and entered judgment against defendants for $1,473.64. From this judgment the defendants appeal, assigning two errors only.

The first relates to the trial court’s order denying their motion to make plaintiff’s complaint more definite and certain by the inclusion of matter descriptive of the kind or species of lumber converted, together with grades, sizes and dimensions.

We find no merit in defendants’ first assignment. The rule is well settled that when a motion to make a pleading more definite and certain is overruled, the moving party waives any error committed by the ruling by answering over, as defendants did here. Crane v. School District No. 14, 95 Or 644, 651, 188 P 712; Anderson v. North Pacific Lumber Co., 21 Or 281, 282, 28 P 5; Graham v. Corvallis & E. R. Co., 71 Or 477, 490, 142 P 774; 1 Bancroft’s Code Pleading Practice and Remedies (Ten Year Supp), 404 § 720; 41 Am Jur 567, Pleading § 397; 71 CJS 1152, Pleading § 578, 1160, § 582(d).

The second assignment of error is addressed to the finding of the referee that defendants converted 27,740 board feet of lumber (less allowance of 2 per cent for shrinkage by planing and trimming) worth $58.42 per thousand.

A referee, unless his powers are restricted by the order of reference, performs the same duties that the judge of the court would have performed had he not made the order of reference. It follows, therefore, that in an action at law his findings, both in the circuit court and in this court, are deemed tantamount to the verdict of a jury. Ward v. Town Tavern, 191 Or 1, 36, 37, 228 P2d 216, 42 ALR2d 662. Our determination on the question of the sufficiency of evidence to support a finding in an action at law is not based upon an original inquiry. To the contrary, we are limited by the findings of fact so long as they are supported by substantial evidence. Bowser v. State Indus. Acc. Comm., 182 Or 42, 44, 185 P2d 891; Butts v. State Indus. Acc. Comm., 193 Or 417, 421, 239 P2d 238.

Without undertaking to refer to the evidence in particular, or to recite it in detail, it is sufficient to say that the record discloses substantial testimony given and received on the trial to support the finding which the appellants challenge, and it must, therefore, for the purpose of this appeal, be taken as true. Nor do we think that the matters upon which different findings were requested and refused were material to the determination of the question which the defendants raise.

Affirmed.

This appeal was initially argued and submitted on December 4, 1957, before Lusk, Warner and Kester, JJ. After the retirement of Kester, J„ from the court and before the instant opinion was written, this matter was by stipulation submitted on briefs to the court, en banc, in lieu of a rehearing.