Wadhams v. Inman

Mr. Chief Justice Bean, after stating the facts, delivered the opinion of the court. 1. The brief of the defendant is directed principally to a discussion of the question as to whether its alleged promise to pay the order given by the logging company to the plaintiff is within the statute of frauds, and therefore void. But upon the argument here it was substantially conceded that the order and promise by defendant to pay it if the logs should be delivered are sufficient to operate as an equitable assignment, if at the time of its presentation and such promise there was a debt actually existing, or to become so in futuro, upon which it could operate. This position presents simply a question of fact. The only evidence in the transcript bearing upon the question is the testimony of Mr. Buckley, the president of the logging company, which is to [147] the effect that on or about the nineteenth of July, 1894, as the president and manager of the logging company, he entered into a contract on behalf of his principal with the defendant to sell and deliver to it about 500,000 feet of logs belonging to- the company, and then in the boom, and also such logs as the company might thereafter get out during the year 1894; that under such contract defendant was to pay the market price for the logs, and to furnish and advance supplies to the logging company, amounting in the aggregate tó about $700, but there was no contract or agreement that it should advance or furnish supplies sufficient to enable the company to conduct its business during the entire season ; that shortly after making the contract some of the creditors of the logging company were urging payment of their claims, and he told them as soon as there was any money due on the contract with the defendant he would pay their accounts; that he informed Mr. Poulsen, of the defendant company, that he intended to draw orders upon him in favor of such creditors, and that Mr. Poulsen replied, “Fix them up so we will know -which comes first”; that, in accordance with this arrangement, he gave an order on the defendant in favor of Kelly, Dunn & Company, No. 1, for $150, and one in favor of the plaintiff, No. 2, for $420, and that he had also’ given an order in favor of the Columbia River Lumber & Fuel Company for $140, which was prior in time to either of the two orders referred to; that at the time these orders were given no logs had been delivered, and the defendant had advanced only about $150 to- the logging company ; that, in pursuance of this contract, 469,000 feet of logs were delivered to the defendant, and the market value thereof was $2,030.39. It thus appears that there was evidence from -which the jury could properly find that at the time of the presentation of the order to the defendant there was a debt to become due in the future, upon which it could operate as an assignment. [148] Tt is next insisted that the court erred in permitting the witness Fried, the representative of the plaintiff, to' answer the question, “When Mr. Poulsen told you, Mr. Fried, that he would pay that out of the proceeds of the logs, if they were delivered, did you rely upon that promise of Inman, Poulsen & Company?” The objection made to this question is that it is an attempt to prove by parol a consideration for the defendant’s promise to pay the order, and is void under the statute of frauds. In support of this contention, Gump v. Halberstadt, 15 Or. 356 (15 Pac. 467), is cited. But, as we have already said, the question of the statute of frauds was abandoned at the hearing, and so this objection falls to the ground. Besides, it is not apparent how the answer to the question could in any way prejudice or affect the defendant’s case. 2. It is also contended that the court erred in giving- the following instruction: “There are various aspects in which this matter can be presented. The defendant, among other things, claims that a bill of sale was made of these logs for a certain sum of money, and that advances were made which left not only no indebtedness from the defendant to the Washougal Land & Logging Company, but that the indebtedness was upon the other side. In that case, of course, plaintiff could not recover, unless, after the time when this agreement was made, these advances were made, and were not made in pursuance of a binding agreement entered into between the parties before that; that is, if the defendant agreed to pay this account, and there was sufficient money to meet the account, then it would not be any answer to proceed and make advances which would not only wipe out the indebtedness, but leave a balance on the other side, unless it was in pursuance of a contract which had previously been entered into between the parties, and as to -which plaintiff had knowledge.” The objection to this instruction is particularly directed to the latter clause, and it is argued that by it [149] the court charged the jury that advances made by the defendant, in pursuance of a valid contract entered into between it and the logging company previous to the presentation of the order in favor of the plaintiff, would be no defense unless the plaintiff had knowledge of such contract. In determining whether the objection is well taken, the substance and effect of the instructions taken as a whole must be considered, and not merely some detached portion thereof (Wellmann v. Oregon Short Line Ry. Co., 21 Or. 530, 28 Pac. 625); and, when so considered and construed, we think it quite clear that the court did not instruct, or intend to instruct, the jury as contended by the defendant. In the instruction complained of it is said that the defendant, among other things, claims that advances were made to the logging company which left no indebtedness from the defendant to it, and in that case plaintiff could not recover unless such advances were made after the acceptance of the order, and not in pursuance of a binding agreement entered into between the parties prior thereto. Immediately following such instruction the court said: “The defendant could not enter into an agreement to pay this sum of money, then proceed and make advances not foreseen at the time, not contemplated, not within the view of the parties, and say that they should be considered as offsetting the claim of the plaintiff, unless the plaintiff had knowledge and assented to such a proposition.” 3. The effect of the instructions, when taken as a whole, is that advances by defendant after the presentation and acceptance of the order would be ím defense, unless made (1) in pursuance of an agreement entered into' between the original parties before the acceptance of the order, or (2) unless plaintiff knew of such advances and assented thereto. No objection can be made to the law as thus announced. It follows that the judgment of the court below must be affirmed, and it is so ordered. Affirmed.