Prineville Warehouse Co. v. Johnson

5 P.2d 713, 138 Or. 324

• Court: Oregon Supreme Court
• Decided: January 12, 1932
• Status: Published

Opinion

KELLY, J.

In the appealing defendants’ brief, there is but one assignment of error, and that is that the trial court erred in overruling their motion for nonsuit, for the reason, it is claimed by said defendants, that plaintiff failed to prove delivery of the supplies in question to the job.

No good purpose can be served by repeating the testimony in detail. Defendant, Cross, testified that the items included in plaintiff’s statement of account and that of the assigned claim of said copartnership were received by him and, except nine bales of hay, were used on the job in question.

It is true that, upon cross-examination, while declaring that he thought he was stating the fact in saying the stuff was delivered to him, he further said he was not prepared to state the amounts and could not from memory identify each item.

The learned and experienced trial judge had the advantage of seeing and hearing the witnesses. His findings are supported by the record.

The plaintiff asks that, in case of an affirmance, an additional allowance be made as an attorney’s fee in this court. The lower court allowed an attorney’s fee of $150. Considering the amount involved, the extent of the record, and the fact that the case was submitted here without oral argument on the part of the appealing defendant, we believe that we are not justified in making any additional allowance.

Judgment affirmed.

Bean, C. J., Brown, Rand and Belt, JJ., concur. Rossman and Campbell, JJ., did not participate in this decision.