McDaniels v. Harrington

Mr. Justice McBride delivered the opinion of the court. 1, 2. Touching the first objection urged, we are of the opinion that the witness should have been permitted to refresh his memory from the memoranda which the evidence tends to show were made and reduced to writing at a time when the facts were fresh in his memory: Section 859, L. O. L. His whole testimony was devoted to showing that the memoranda were correct, and, if true, did show they were. The testimony of the defendant is to the effect that no such statements were sent him in 1911, and later, as are detailed in plaintiff’s testimony, and of which plaintiff claims the memoranda offered were summaries. While the court admitted them as original evidence instead of memoranda to refresh the memory of the witness, their actual value depended upon the witness’ testimony as to the facts which an inspection of them recalled to his memory. Although the admission of the memoranda as original evidence was technically erroneous, it is plain that it was not such an error as worked any injustice to defendant. Plaintiff was examined and cross-examined as to the method of their preparation and their accuracy, and, outside of the fact that they served to recall to his memory the original transaction which they epitomized, they were worthless, so that indirectly they accomplished the very purpose for which they were offered, and nothing more. Our courts have been very liberal in permitting the use of such memoranda: State v. Magers, 35 Or. 538 (57 Pac. 197); Susewind v. Lever, 37 Or. 365, 368 (61 Pac. 644); Oyler v. Dautoff, 36 Or. 361 (59 Pac. 474). 3, 4. The second objection is not well taken. In this state leases for a period of one year are not re [632] quired to be in writing, and it would be an anomaly in a contract that to surrender a lease should require a greater degree of formality in its execution than that requisite to create it: Ross v. Schneider, 30 Ind. 423; McKinney v. Reader, 7 Watts (Pa.), 123; Greider’s Appeal, 5 Pa. St. 422; Smith v. Devlin, 23 N. Y. 363; Harms v. McCormick, 30 Ill. App. 125. In addition to this the contract had been executed, the plaintiff had surrendered possession, and the land had been sold to another person. To hold under such circumstances that defendant, after obtaining possession of the land, can repudiate his agreement to pay for the surrender of the lease would be to permit him to use the statute of frauds to perpetrate a fraud. It is seldom that the statute of frauds is applied to executed contracts: McLeod v. Despain, 49 Or. 536 (90 Pac. 492, 92 Pac. 1088, 124 Am. St. Rep. 1066, 19 L. R. A. (N. S.) 276). 5-7. Another objection urged is as to the refusal of the court to take away from the jury certain items in the account of plaintiff alleged to be due by reason of labor performed in cutting willows and filling a ditch upon defendant’s land, for which plaintiff claimed $136.50. It appeared from the testimony that plaintiff took this work by contract. His testimony was that he was to receive $250. The land was sold before the work was completed, and plaintiff claims compensation at the rate of $6.50 per day for 21 days’ work, which he performed with a team. Defendant claims that he agreed with plaintiff that the work should be “lumped off” at $100. There is no testimony on the part of plaintiff as to the reasonable value of the work per day. It is clear that, the sale of land by defendant having rendered the completion of the contract impossible, he is bound to pay the reasonable value of the work which has been performed. It is also clear that [633] plaintiff, having elected to sne for that reasonable valne, should introduce some testimony tending to show what that reasonable value is. Not having done so, we must either send the case back for a new trial or adopt the defendant’s theory that plaintiff’s compensation was fixed at $100, and even this is not a wholly accurate method, as we cannot be sure the jury accepted plaintiff’s statement in preference to defendant’s. But this is a small case, with the evidence all before us, and we think it a fit one in which to invoke Section 3, Article VI, of our amended Constitution, which authorizes us, under certain circumstances, to retry the matter according to the rules of equity, and render such a judgment here as should have been rendered in the court below. We will therefore reduce the judgment $36.50 in accordance with the amount admitted by defendant. 8. Another objection urged relates to the failure of the court to instruct the jury that certain items in plaintiff’s and defendant’s accounts were admitted. This pertained principally to admissions in the testimony and not in the pleadings. It would have required quite an amount of time and research on the part of the court to have verified this instruction by going over the various items. While in some cases such an instruction would be proper, we do not think it was obligatory upon the court to give it. The jury had the testimony, and the law presumes them as capable of remembering and understanding it as the judge. The refusal to give it was not error. The judgment will be modified by deducting the sum of $36.50 as above indicated, and, as so modified, will be affirmed. Modified. . Mr. Justice Bakin absent.