Janson v. Pacific Diking Co.

JOHNS, J. The only errors assigned are based on the admission and ruling out of evidence, and that the complaint does not state facts sufficient to constitute a cause of action. 1, 2. When analyzed, the first cause of action is founded upon a contract between the plaintiff and the defendant, in which the plaintiff promised to [134] clear 702 rods of land for diking purposes at the agreed price of $2 per rod. He claims that he was induced to make that price by reason of the fact that the defendant modified its contract with his mother, Mrs. Westerlund, to the effect that she should pay only $2.50 per rod for the diking of her lands by the defendant, instead of $8, as provided in the original contract to which she and certain other land owners were parties. The defendant denies the making of any contract whatever with the plaintiff, and pleads that it made an agreement with Mrs. Westerlund to allow her $2 per rod on her contract price for all the land cleared by her son, the plaintiff; that it had settled with her, and that with the plaintiff’s knowledge she had received credit in full on her contract for all of the clearing which had been done by him. The second cause of action is for the alleged value of services performed by the plaintiff for the defendant at its special instance and request, which the' defendant denies. The pleadings are in the usual form and there is no merit in the defendant’s contention that the complaint does not state sufficient facts. 3. It is admitted that after extended negotiations the defendant and the land owners entered into a written contract for the diking of their property, dated January 23, 1915, to which Mrs. Westerlund was a party. In this the land owners agreed to pay $8 per rod for the diking of their respective premises. It appears that the plaintiff and Frank Behnke as manager for the defendant met at the office of W. T. Eakin at Astoria, and that there was then prepared a writing between the defendant and Mrs, Westerlund, dated “this — day of —, 1914,” wherein the defendant is known as the party of the first part and Mrs. Westerlund as the party of the second part, which was never signed by either party [135] and never witnessed, and of which the material provisions are as follows: “That the party of the first part is to top off and complete the dike along the river front, abutting upon my farm on Gray’s River, making it conform the rest of the dike being built around my farm, the consideration of $2.50 per rod for all old dike improved; also the first party is to employ the son of said Mrs. Mary Westerlund to clear the right way for the building of the dike for the entire dike this day agreed upon by and between said first party and said second party together with others, for diking certain lands on Gray’s River, for and in consideration of $2 per rod for each rod so cleared. The second party hereto and her son, Maurice Westerlund, who is to clear said right of way, agree to the above conditions.” After the plaintiff had introduced testimony tending to show that this unsigned instrument had been ratified and approved, and that it was the basis and consideration of his alleged contract with the defendant, he offered the written memorandum in evidence as tending to prove the making of his contract with the defendant as alleged in his complaint. Objection was duly made to its introduction, but was overruled, and this is assigned as error. In Humphrey v. The Chilcat Canning Co., 20 Or. 209, this court held that: “Where at the time parties enter into a contract, a memorandum is read containing the terms thereof which are assented to by the parties except in two particulars, such memorandum becomes a part of the transaction, and in an action on the contract the same is competent evidence as a part of the res gestae, and may be considered by the Jury for the purpose of assisting them to determine what the terms of the contract were.” [136] Although, this memorandum, is dated “the — day of —, 1914,” and the written contract hears date of January 23, 1915, yet the proof indicates that both of them were prepared by W. T. Eakin at or about the same time, and they both relate to the same subject matter. The plaintiff’s evidence tends to show that both instruments were accepted and approved by the defendant at the time they were prepared, and that in consideration thereof he made his contract with the defendant.to clear the land at the price of $2 per rod. Counsel for plaintiff then stated that the memorandum was- not offered as “the finished contract of the parties, but as expressing the contract at the time, as a memorandum read over by the parties and consented to,” or “for the purpose of showing that it was the contract, but it is part of the transaction, part of the res gestaeIn the condition of the record, we must assume that it was received for such purpose only, and that the jury was properly instructed concerning it. The facts bring this case within the rule and reason of the above decision. 4. There were no objections to the charge or the refusal to give requested instructions, and the jury found for the plaintiff. There was evidence to support the verdict and we must assume that the jury was correctly instructed. The issues were clearly defined by the pleadings. The fact that the defendant had a dispute with Mrs. Westerlund over the amount of its claim against her, that it was forced to file a lien upon her property to secure the same, or that afterwards settled with her would not be a defense the plaintiff’s cause of action. The plaintiff sought to recover upon an alleged contract, and as the jury found for him it must follow that there was such a contract. It does not appear that the testimony which was offered and refused would tend to [137] prove that no such contract was made. Neither does it tend to show that the defendant entered into a contract with Mrs. Westerlnnd by which she would receive credit of $2 per rod on her diking contract, for all of the land which the plaintiff cleared. Those are the issues made by the pleadings. Moreover, there is no statement or showing to the court that the evidence which was refused was material, or what it would tend to prove if it were admitted. Without going into the details of each assignment of error, after a careful reading of the record we do not find any prejudicial error in the ruling of the court in the admission or exclusion of evidence. The judgment is affirmed. Affirmed. Rehearing Denied.