Winn v. Ransom

255 P. 392, 122 Or. 64, 1927 Ore. LEXIS 140

Opinion

COSHOW, J.

The evidence is very conflicting. Plaintiff relies exclusively on his own testimony and the testimony of his employee, Smith, and one other witness who worked with Smith in sinking the wells. The. burden of proof was on the plaintiff to establish the modification of the contract in writing between him and the defendant E. C. Eansom. The learned circuit judge saw the witnesses, observed their demeanor on the witness-stand and was in a better position to weigh the testimony than is this court. We have carefully read and considered the testimony and are persuaded that the learned Circuit Court found according to the weight of the testimony. It is unnecessary for us to decide the question raised by defendants regarding the right of plaintiff to sue for the value of the services rendered under the contract. It is admitted that he did not perform the contract. He claims that defendants breached it. In view of our finding that the plaintiff has failed to establish by a preponderance of the evidence that the contract was changed by agreement we have not considered the legal question raised by defendants. It is not contended that plaintiff performed his contract unless it was modified as he claims. ■ Our conclusion is that the contract was not so modified. This conclusion requires an affirmance of the decree and it is so ordered. Aeeirmeu.