McPheeters v. Smith

Opinion by Mr. Chief Justice McBbide. 1. Defendant in his answer while first formally denying the contract practically admits that he made it, suggesting only certain immaterial variations, and asks to be relieved from it because the quality of the instrument was misrepresented to him by the seller. This was substantially the sole issue made by the pleadings. It was an affirmative defense, and before defendant could have a judgment releasing bim from what was otherwise his confessed legal obligation to [597] pay for the instrument there should have been a finding of facts showing that the defense was true. This is the holding in Freeman v. Trummer, 50 Or. 287 (91 Pac. 1077). Here there is no finding upon the only issue upon which defendant depended to exonerate him from payment, in fact no finding upon any material issue in the case, and, therefore, nothing upon which to base a judgment. 2. Where the findings are sufficient to justify a judgment for one party, and the other party fails to object to them or to request findings conformable to his theory, the finding made will stand, but such is not the rule where the findings made are insufficient to justify a judgment for either party. It is to be regretted that the appealing party did not bring up the evidence by a bill of exceptions as we might then have been enabled to dispose of this small case without a new trial; but in the present condition of the record the judgment must be reversed and a new trial ordered. Beversed and Bemanded. Mr. Justice Benson, Mr. Justice Burnett and Mr. Justice Bean concur; Mr. Justice Harris not sitting.