Warren v. Dinwoodie

171 P. 1175, 88 Or. 342, 1918 Ore. LEXIS 41

• Court: Oregon Supreme Court
• Decided: April 9, 1918
• Status: Published

Opinion

BEAN, J.

It is claimed upon the part of the appealing defendants that after the purchase they made a contract with C. A. Parvin for the sale of their interest in the ranch to him and that he alone was responsible to plaintiff. This deal, however, was never fully consummated. They also claim that there was no testimony showing that Parvin was authorized to act for the other defendants.

1, 2. Where a cause is tried by the court without the intervention of a jury the findings of fact made by the court are deemed a verdict and may be set-aside only for the same reasons: Section 159, L. O. L.; U. S. Fidelity & Guaranty Co. v. Martin, 77 Or. 369, 392 (149 Pac. 1023); Doolittle v. Pacific Coast Safe & Vault Works, 79 Or. 498, 503 (154 Pac. 753). Upon an appeal based upon findings of fact made in such a case this court has repeatedly held that such findings made by the trial court cannot be set aside on appeal if there is any competent evidence to support them: Flegel v. Koss, 47 Or. 366 (83 Pac. 847); Astoria R. Co. v. Kern, 44 Or. 538 (76 Pac. 14); Norman v. Ellis, 74 Or. 168 (143 Pac. 1112); Clackamas Southern R. Co. v. Vick, 72 Or. 580 (144 Pac. 84).

3-6. Considerable attention is devoted in the briefs of the learned counsel for the appealing defendants to the introduction of what is claimed to be incompetent evidence and it would seem that the argument verges upon the weight of the evidence which we cannot consider. It is a well-recognized rule that where a cause is tried by the court without a jury it is presumed that the case has been decided upon the material evidence; therefore, the question recurs as to whether there was any evidence to support the findings. The authority of Mr. Parvin to act for the other parties as indicated by the conversation they had with the plaintiff in March, 1915, was certainly direct and' positive authority for him to act for them. There is no claim made that such power was ever canceled or withdrawn. It appears that in January, 1915, defendant Clark went to the ranch and the evidence tends to show that he acknowledged the debt due to plaintiff. In his testimony in regard to this conversation with Mr. Clark, Theodore Warren stated:

“Well, he said he had come up there to pay me this account. They wanted me to give possession to this man Bottemiller, and he come up to settle with me for this account.”

They did not settle for the lease with Harris or with plaintiff, and Mr. Clark requested them to go to Wood-burn the next week “and they would settle this all there.” Plaintiff and Mr. Harris went to Woodburn where they settled with Mr. Harris for the lease and “they said they would ask me to wait.” Obviously the tentative arrangement made between the appealing defendants and Mr. Parvin would affect only their own interests as between themselves, being coadventurers in the undertaking. It would not be expected or required that the farm laborer employed to do work on the wheat ranch would look after the title to the land. The fact that a settlement of the lease was not made until January, 1915, which is claimed by counsel for the defendants who have appealed as a condition precedent to the hiring of plaintiff,. would not materially change the matter. According to the ordinary course of such farming the labor appears largely to have been done for the purpose of raising a crop in 1915, and the lease on the place up to March 1, 1915,-would not affect the same in any manner. There was evidence in the case supporting the findings of fact which are of the same force as the verdict of a jury. Under Article VII, Section 3, of the Constitution of this state, the determination cannot be disturbed. Finding no error in the record the judgment of the lower court is affirmed. Affirmed.

McBride, C. J., Moore and McCamant, JJ., concur.