Parrington v. Weinberger

166 P. 528, 86 Or. 49, 1917 Ore. LEXIS 102

• Court: Oregon Supreme Court
• Decided: July 17, 1917
• Status: Published

Opinion

Mr. Justice Benson

delivered the opinion of the court.

The one question for our consideration is this: Do the findings of fact justify the conclusions of law, and the consequent judgment? The determination reached by the trial court is based upon Section 227, subd. 8, L. O. L., which reads thus:

‘•‘In all cases, however, where advances of goods, wares, merchandise, or money are made to, or labor performed for any person engaged in any undertaking, trade, business, avocation, occupation, or pursuit, to enable or assist such person to carry on such undertaking, trade, business, avocation, occupation, or pursuit, or which shall be used or employed for any such purpose, then no article of personal property, too], implement,' or apparatus used or employed by such person in such undertaking, trade, business, avocation, occupation, or pursuit, or money due such person growing out of or incident thereto, shall be exempt from execution on a judgment recovered for such advances or for such labor performed.”

This section clearly provides that the exemptions named in the statute shall not protect any property as against the claim of a laborer for his compensation. It follows that if Whiting and Crossen have performed labor for Parrington, then the judgment should be affirmed. We are of the opinion, however, that the findings of fact do not justify such an inference. On the contrary, the facts disclose a joint adventure, the profits of which were to be shared equally by the three coadventurers and no one of them can be said to be in the employ of either of his associates, This being true, the personal property was exempt from execution and the plaintiff is entitled to recover. The judgment is therefore reversed and the cause remanded to the lower court with direction to enter a judgment for plaintiff. Reversed and Remanded.

Mr. Chief Justice McBride, Mr. Justice Burnett and Mr. Justice Harris concur.

Allowed October 16, 1917.

Motion to Recall Mandate.

(166 Pac. 528.)

On motion to recall mandate and correct judgment entry. Motion allowed.

Mr. Elmon A. Genesta and Mr. Virgil L. Glarh, for the motion.

Mr. Arthur Langguth, Mr. Henry L. Lyons and Mr. Charles M. Hodges, contra.

Department 1.

The petition of defendant herein calls our attention to a serious oversight in the original opinion, wherein we directed a judgment to be entered in accordance ■ with the prayer of the complaint. The record discloses that the complaint alleges damages in the sum of $100, which allegation was denied by the answer and no evidence was offered upon the issue. Under these conditions the plaintiff is not entitled to a judgment for damages and the mandate will therefore he corrected in accordance herewith. Motion Allowed.

Mr. Chief Justice McBride, Mr. Justice Burnett and Mr. Justice Harris concur.