Chung v. Stephenson

Mr. Justice Eakin delivered the opinion of the court. 1. These two items, the claim for damages for injury to the hop plants and for the insurance premium paid, are very defectively pleaded, but the reply treats them as counterclaims, and they ivere so regarded at the trial; therefore, unless otherwise disposed of in. that court, they are issues made by the pleadings, and the court should have made findings on such issues: Daly v. Larsen, 29 Or. 535 (46 Pac. 143). 2. Defendants admit their liability upon the note for principal and interest, and tendered the amount thereof into court. This constitutes payment, and it is clear that they are entitled to be reimbursed therefor out of the price of the hops. It is a counterclaim which defendants were entitled to plead as against Don Sing; for it was clearly understood between them that the signing of the note was a part of the advances to Don pro-A'ided for in the contract, and plaintiff took the claim subject to every counterclaim held by defendants at the time of the purchase. The amount tendered into court is a payment on the [246] judgment to that extent, but only against that portion of the judgment based on the note. Thus defendants are not reimbursed out of the price of the hops for the amount paid on the noté. The court should have deducted from the price of the hops the amount of this note. Decided 23 April, 1907. 89 Pac. 805. The item of $50 claimed by defendants as payment appears from the evidence to be part of the $250 payment credited in the complaint. The lower court finds the fact correctly as to the $150 duebill, that it is to be paid out of the hops, and, as plaintiff owns the duebill and the claim for the price of the hops, it is proper to ignore it in the judgment, as defendants are not entitled to deduct it from the price of the hops, unless it has been paid by them. 3. Whether Gee He was a joint owner or partner with Don Sing in the crop of 1904 is immaterial. It could only be a question between themselves, and could not affect Don Sing’s liability to defendants for advances under the lease. For the errors here suggested, the cause will be reversed, and remanded to the court below for such further proceedings as may be deemed proper, not inconsistent with this opinion. Reversed.