Pitts v. Crane

236 P. 475, 114 Or. 593, 1925 Ore. LEXIS 37

• Court: Oregon Supreme Court
• Decided: March 26, 1925
• Status: Published

Opinion

PER CURIAM.

— This action is predicated upon the supposition that the contract declared upon is joint, and not several.

The contract is joint or it is several. It cannot be regarded as both joint and several. If it is a joint contract, it was not only proper, but necessary, that both the husband and wife join in the action as plaintiffs. But, if it is several, the plaintiffs cannot sue jointly: 1 Code Pleading and Practice, Sutherland, § 18; 15 Ency. Plead. & Prac. 528; 4 Page on The Law of Contracts (2 ed.), §§ 2078, 2079. The reason for the rule requiring the plaintiffs to join as such in an action upon a joint obligation is concisely stated by Sutherland, a recognized authority, as follows:

“In the first place it prevents a multiplicity of suits, and in the second place £a defendant who has made but one contract or incurred a single liability has the right to require that the whole case be disposed of in one action.’ In such a case the plaintiff or plaintiffs must represent the entire cause of action, and the plaintiff or plaintiffs thus representing the entire cause of action must be the ‘real parties in interest.’ In other words, a single cause of action cannot be divided.” 1 Code Pleading and Practice, Sutherland, § 18.

Our statute enacts that, except as otherwise provided, an action must be carried on in the name of the real party in interest: Or. L., § 27. And this court has uniformly held that the above section was enacted for the benefit of the defendant, to protect him from being harassed by different suits or actions arising from the same cause: Sturgis v. Baker, 43 Or. 236 (72 Pac. 744); Simon v. Trummer, 57 Or. 153, 159 (110 Pac. 786); Devlin v. Moore, 64 Or. 433, 441 (130 Pac. 35); Blaser v. Fleck, 96 Or. 187 (189 Pac. 637).

A contract must be proved as alleged; and where, as here, the contract is averred to be joint, the proof must disclose a joint, and not a several, contract.

The defendant quotes the following from 20 R. C. L. 674, 675:

“When a contract has been made with several persons under which a separate duty arises to each, in contemplation of law it, is the same as if a separate and distinct contract had been entered into with each separately and they must sue separately.”

The editors support this statement of the law by Hall v. Leigh, 8 Cranch, 50 (3 L. Ed. 484, see, also, Rose’s U. S. Notes).

While we are in accord with the principle set forth above, it does not apply to the facts in the case at bar. The action in the case of Hall v. Leigh, supra, was brought to recover the proceeds of 100 bags of cotton, shipped to the defendants to be sold by them. The plaintiff and another made a joint shipment to the defendants, at Liverpool, of 200 bales of cotton, to be sold by defendants on commission. The shipment was accompanied by an individual communication from each consignor, informing the defendants that each shipper owned one half of the cotton, and giving separate and varied instructions to the consignee relating to the disposal of each half of the cotton and accounting for the proceeds thereof. Based upon these facts, the court held that the separate action by one of the consignors against the consignee for violation of his separate instructions had been properly maintained.

In the case of Lyon v. Bertram et al., 20 How. 149, 156 (15 L. Ed. 847, see, also, Rose’s U. S. Notes), the Supreme Court of the United States, speaking through Mr. Justice Campbell, said:

“The plaintiffs are shown to be the parties jointly interested in the subject of the action, and in the claim for relief. It is quite immaterial in what proportions they may be concerned. Their case is substantially established, when their joint interest is shown, and the error in respect to the degree of the interest of the several parties is not such a variance as will be considered.”

To the same effect is Pomeroy’s Code Remedies (4 ed.), § 116.

Did the court err in overruling the defendant’s motion to direct a verdict? This is the decisive question in this case. At the hearing the defendant, through his counsel, in order to establish that the verdict returned by the jury was unjust and founded upon prejudice, ably and earnestly mar- staled the evidence adduced upon the trial of the cause in the court below.

From a careful review of the somewhat voluminous record, we find a sharp conflict in the testimony. It is undesirable to encumber our reports with a mass of testimony in order to support our ruling in this case. However, we have read and digested the testimony of the fourteen persoiis testifying on behalf of plaintiffs, and we find that there is some competent evidence sustaining plaintiffs’ claim in the matter of labor jointly performed for the defendant and at his request. On the other hand, from the testimony given by the eighteen witnesses on the part of the defendant, we find evidence to the effect that‘at the time of the averred contract the defendant, a farmer residing at Melrose, in the Umpqua Valley, had completed his farming operations for the year; that the busy season was over; that his harvest had been gathered; that the early part of winter had arrived when the plaintiffs, a recently married couple who had come to the county some time before, appeared, seeking a place to stay; that they were homeless, and that the wife was soon to become a mother; that the defendant, George A. Crane, although he then had no work for them to do, made his averred contract in view of plaintiffs’ situation and in anticipation of defendant’s requirement for help at farming during the succeeding harvest period. Having found some competent evidence to support each material allegation of the complaint, we hold that the motion to direct a verdict for defendant was properly overruled. Again, this court is precluded from considering the weight of contradictory evidence, and the verdict in such case is conclusive. Our fundamental law provides:

“No faot tried by a jury shall be otherwise reexamined in any court of this state, unless the court can affirmatively say there is no evidence to support the verdict.” Or. Const., Art. VH, § 3-c.

Because of the contradictory testimony set out in the record before us, we cannot decide that there is no affirmative evidence of a joint contract, or of the “going wages” for the services claimed by plaintiffs.

Now, recurring to that averment in the motion alleging a fatal variance between the allegations of the complaint and the evidence: A variance between the allegations of the complaint and the evidence is not material, unless the adverse party has actually been misled, to his prejudice in maintaining his defense: Or. L., § 97; Wehrung v. Portland Country Club, 61 Or. 48 (120 Pac. 747). In the case just noted, it was held that the record contained no proof that the defendant had been misled, to its prejudice. That is true in the case at bar.

Defendant challenges the correctness of the instructions given by the court.

The court’s exposition of plaintiffs’ pleading is not strictly accurate as to the averments of that document with reference to the particular work to be performed by the plaintiffs, and is somewhat involved, in this: the court confuses the averments of the pleading with some of the evidence given in support thereof. However, we have carefully read this instruction and are unable to see how the defendant was injured thereby.

Defendant also objects to Instruction No. 2. It must be borne in mind that the various instructions are to be taken and construed together; and, when this instruction is read in connection with Instruction No. 10, defendant’s objection is answered.

Instruction No. 8 is not objectionable.

We now pass to tbe exceptions reserved relating to tbe ruling of tbe court during tbe reception of tbe evidence. Tbe defendant offered to prove by Mrs. Kabler that sbe bad offered to work for defendant for ber board and lodging. This testimony was not relevant to prove or disprove any issue made by tbe pleadings, and was properly rejected.

E. H. Crane was asked a question which called for bis opinion as to tbe necessity for, and extent of, additional farm work to be done on tbe defendant’s place beyond what tbe defendant himself could do, and tbe court properly sustained an objection thereto.

Mamie Handy, in response to a question as to tbe reasonable value of Lucile Pitts’ work at tbe defendant’s place, answered:

“Well, in that case, it would be worth him — Mr. Pitts’ and ber board. That is, tbe kind of work sbe bad to do.”

Tbe court sustained a motion to strike, on tbe ground that tbe answer was not responsive to tbe question. In tbe very next question tbe substance of tbe former was repeated, and tbe witness answered that tbe value of Mrs. Pitts’ services “would be $20 a month.” Tbe witness having been permitted to answer tbe question, tbe defendant was not injured.

Another objection relates to hearsay testimony given by Charles A. Stubbs. This witness bad testified to a number of matters, including that of woodcutting by tbe plaintiff, Yern W. Pitts, when, jn response to a question as to bow be knew Pitts was cutting wood, be answered that Pitts bad told him so. Were this tbe only testimony relating to tbe cutting of wood for defendant by this plaintiff, tbe ruling of tbe court in refusing to strike tbe hearsay testimony, upon proper • motion, would be deemed serious. But, following the objectionable testimony witness testified, in effect, that he had seen Pitts cutting wood. Moreover, the record is full of competent evidence by both the plaintiffs’ and the defendant’s witnesses, and even by this defendant himself, that he helped to cut forty-seven tiers of wood for the defendant.

When prejudicial error affirmatively appears on the face of the record, this court cannot presume that it is harmless. The matter rendering it harmless should appear in the bill of exceptions: Nickum v. Gaston, 24 Or. 380, 392 (33 Pac. 671, 35 Pac. 31); Durkee v. Carr, 38 Or. 189, 196 (63 Pac. 117, and cases therein noted). We have already pointed out that the record contains evidence which renders harmless Stubbs’ hearsay testimony.

This case is affirmed. Affirmed.

Coshow, J., took no part in the hearing or consideration of this case.