Johnson v. Stillwell

BENSON, J. The first assignment of error is based upon the following recital in the bill of exceptions : “Townley was called as a witness .on behalf of plaintiff and testified that he had 183 head of cattle on this range in 1917 which were mingled with plaintiff’s, and being ashed if defendant agreed to return his cat214 tie or pay the value thereof if not returned on demand and to state the terms of such agreement as to said guaranty,_ if any, to which question the defendant objected as incompetent, irrelevant and immaterial, and the objection was sustained by the court and an exception was duly allowed.” This constitutes the entire record upon this point. There is no statement made by the attorney for plaintiff as to what facts he expected to elicit in the answer. In Kelley v. Highfield, 15 Or. 277, 282 (14 Pac. 744, 746), we find this language: “The exception taken to the refusal of the court to allow the witness Fred Meyer to answer the question propounded to him is not available. The witness did not answer, and it nowhere appears from the bill of exceptions what fact appellant expected to elicit by the question. To make this exception available the bill of exceptions ought to have gone further and shown what it was expected to prove by the answer to this question. ’ ’ This ruling has been reiterated many times by this court, the latest being in Mowrey v. Bouton, 79 Or. 182 (154 Pac. 897). The court instructed the jury to the effect that unless plaintiff had established by a preponderance of the evidence, that there was a contract, wherein defendant agreed to take plaintiff’s cattle to pasture and guaranteed the safe return thereof, there could be no recovery for the loss of stock. The court also refused an instruction requested by plaintiff as follows: “If you find that defendant did not agree to limit the number of cattle on this range for the year in question, or the kind of stock to be ranged thereon for such season, or did not agree to salt it for the stock thereon, or did not agree to make good any loss, and only accepted the same at the owner’s risk, the defendant is still liable to plaintiff and plaintiff is entitled [215] to recover, if you find that defendant was guilty of negligence.” 1. The conflict between the instruction given and the one refused presents the next question for our consideration. It is a settled doctrine that a plaintiff may not base his complaint upon a right of action ex contractu, and recover upon proof of a right of action ex delicto: Pomeroy’s Remedies and Remedial Rights, § 558. 2. The complaint in the present case so far as the second cause of action is concerned, is based exclusively upon alleged breaches of a contract. It is true that plaintiff asserts that defendant negligently violated the terms of his agreement, but the manner of this allegation amounts to no more than a conclusion of law. The pleading is very different from that of Pilson v. Tip-Top Automobile Co., 67 Or. 528 (136 Pac. 642), upon which plaintiff seems to rely, since in that case, as the writer of the opinion points out, the gravamen of the complaint is not the breach of the contract in removing the car to another garage, but the negligence of defendant in permitting snow to accumulate upon the roof of the building in which the car was stored. There was no error in the action of the trial court upon this subject. Plaintiff’s .complaint is so framed that he is not entitled to recover thereon except by proof of a breach of contract. It is also urged that the court erred in giving to the jury this instruction: “I instruct you that if you find from the preponderance of the testimony that plaintiff and defendant met on or about the 15th day of February, 1918, or thereabouts, and agreed upon the facts and the relative claims of each against the other and about this stock, and it was fairly understood between them that it was a settlement without condition, then the plaintiff is [216] bound thereby and your verdict must be for the amount agreed upon between them, and in favor of the party in whose favor said settlement was made.” 3, 4. In considering the propriety of this charge, it must be kept in mind that there are two causes of action set out in the complaint: (1) an alleged balance due to plaintiff from defendant upon the joint adventure of wintering their stock, together with an item of $90 for a stopover bill of lading. If this had been the only claim of plaintiff, the instruction might very properly have been given. But the second cause of action is a claim for unliquidated damages for various breaches of an alleged contract, and the instruction is so framed as to apply to both as a defense. In the case of Vanbebber v. Plunkett, 26 Or. 562 (38 Pac. 707, 27 L. R. A. 811), Mr. Justice Wolverton, in an able and exhaustive opinion, discusses the availability of a plea of account stated in such a case and arrives at the conclusion that a promise to pay a certain sum in settlement of a claim for unliquidated damages cannot be the basis of an account stated. This case has been cited with approval in Pudas v. Mattola, 173 Mich. 189 (138 N. W. 1052, 45 L. R. A. (N. S.) 534). We conclude, therefore, that the court erred in giving this instruction. The judgment is reversed and the cause remanded for a new trial. Reversed and Remanded. Harris, J., absent.