Williams v. Ingle

BURNETT, C. J. 1. At the trial the defendant objected to receiving any evidence respecting the items of damages claimed, on account of not receiving a detailed statement of the items, sued upon, but his objection was overruled. Section 84, Or. L., reads thus: “A party may set forth in a pleading the items of an account therein alleged, or file a copy thereof, With the pleading verified by his own oath or that of his agent or attorney, if within the personal knowledge of such agent or attorney, to the effect, that he believes it-to be true. If he do neither, he shall deliver to the adverse party, within five days after a demand thereof, in writing, a copy of the account, verified as in this section provided, or be precluded from giving evidence thereof. The court or judge thereof may order a further account when the one filed or delivered is defective.” — 362 — In law actions under our Code of Civil Procedure this is the only authority for demanding items of an account. This, however, is not an action upon an account. It is an action for breach of a contract. It sounds in tort. The term “account” refers to items of debit and credit arising out of performance of a contract: 1 Words and Phrases, title “Account.” Strictly speaking, the defendant was not entitled to any itemized statement. There was no error in receiving evidence, therefore, of the amount of damages. 2, 3. The bill of exceptions abounds in assignments of error predicated upon the action of the court in refusing to compel the plaintiff to elect whether he deemed the clause of the contract already quoted a representation or a warranty, and in finally instructing the jury that the proceeding was upon a warranty. Coupled with this also is an exception to the court’s allowing the plaintiff to amend the complaint by interlineation to the effect that in entering into the contract he relied upon the provision already mentioned. Warranty is defined in 40 Cyc. 492, in these terms: “The obligation by which one contracts to defend another in some action which may be instituted against him; an agreement which refers to the subject-matter of a contract, but, not being an essential part of the contract, either by the nature of the case or by the agreement of the parties, is collateral to the main purpose of such contract, an express or implied statement of something which the party undertakes shall be párt of a contract, and though part of the contract, yet collateral to the express object of it; a more or less unqualified promise of indemnity against a failure in the performance of a term in the contract.” — 363 — In the opinion of the writer, the complaint was sufficient without the amendment. In substance it showed that the defendant had agreed to deliver the property in question in certain condition, but that he failed to perform his stipulation in that respect, on account of which the plaintiff was compelled to incur expenses in doing what the defendant had agreed to do and which was essential to the proper enjoyment of the property within the contemplation of the parties. The stipulation was one of the direct and principal terms of the contract, part of the contractual consideration inducing the plaintiff to pay the price, a breach of which would result in damages as for a violation of a covenant. The defendant had promised certain things to be fulfilled by him in the future, to wit, on delivery of the property some ten days. afterwards. Under such circumstances there is no more occasion to plead reliance on his agreement in an action of damages for its breach than there would be if he were sued for breach of promise to pay money or to deliver lumber or wheat in certain quantities. It is said in Abilene Nat. Bank v. Nodine, 26 Or. 53 (37 Pac. 47), that where a breach of warranty in the sale of a chattel is set up it is necessary to allege that the purchaser relied upon the warranty and was thereby deceived. The same doctrine is taught in Feeney & Bremer Co. v. Stone, 89 Or. 360 (171 Pac. 569, 174 Pac. 152). In both of these cases the seller represented to the buyer that the property sold had certain present qualities and not, as here, that he would perform some act afterwards. In such a state of facts, there is good reason for the rule that the purchaser must show that he,relied on the warranty; for, if he knew the goods did not possess the guaran — 364 — teed quality and yet accepted them, he has no cause to complain. The instant case is not like those mentioned and they are not applicable to the present contention in the matter of warranty. 4. The defendant complains that without the amendment the complaint did not state a cause of action. Conceding, without deciding, that the excerpt from the contract already quoted was a warranty, yet in our judgment the action of the court in allowing the amendment did not prejudice the defendant. In common sense the purpose of the action is quite apparent, namely, to recover damages for the failure of the defendant to perform the terms of the agreement by him to be performed. It is said in Section 97, Or. L.: “No variance between the allegation iñ a pleading and the proof shall be deemed material, unless it have actually misled the adverse party to his prejudice in maintaining his action or defense upon the merits. "Whenever it shall be alleged that a party has been so misled, that fact shall be proved to the satisfaction of the court, and in what respect he has been misled; and thereupon the court may order the pleadings to be amended upon such terms as shall be just.” It is not alleged or intimated in any manner that the defendant was misled by the difference between the allegations of the complaint and the evidence. There was no objection to the testimony for incompetency or immateriality, but only because a proper itemized account was not furnished. From what has already been said, the objection is of no moment, and hence the defendant is in no situation to complain on that point. Moreover, in Section 98 the rule is laid down thus: — 365 — “When the variance is not material, as provided in the last section, the court may direct the fact to be found according to the evidence, or may order an immediate amendment, without costs.” To be material the variance must have actually misled the defendant to his prejudice. No different evidence was required to maintain the action or defense on account of the amendment or without it, so that there was no error in the action of the court in that respect. 5. It is assigned as error that no evidence was introduced showing the reliance of plaintiff upon the representation made by defendant or that the plaintiff was deceived thereby. So far as that is concerned, that exception might be germane to the consideration of the case, if this had been a suit to rescind the contract on the ground of fraud inducing its execution on the part of the plaintiff. This, however, is a case where the plaintiff purchased property from the defendant on certain conditions and terms. He does not seek to rescind the contract, but only to recover damages for its breach. He has elected to keep the property, and brings himself within the rule approved in Feeney & Bremer Co. v. Stone, 89 Or. 360 (171 Pac. 569, 174 Pac. 152), quoted from Douglass Axe Mfg. Co. v. Gardner, 10 Cush. (Mass.) 88: “The buyer has, if not a double remedy, at least a choice of remedies, and may either return the property within a reasonable time, or keep it and maintain an action for breach of the warranty.” This is well settled by numerous precedents in this state. Besides all this, the fact that the plaintiff paid part of the purchase price is some evidence that he relied upon the defendant’s promise, whether it — 366 — be called warranty, covenant, agreement, stipulation, compact, or other synonym for contract. 6,7. Other objections are urged upon the insufficiency of the testimony to justify the verdict. The defendant contends that there was no direct evidence showing that the heating plant was out of order on July 12, 1918, the date of delivery thereof to the plaintiff. The contention seems to be that because the disorder was not discovered until some weeks later, the jury could not find that it existed at the date of delivery. There is evidence, however, that when discovered the boiler tubes were exceedingly rusty, a condition which the jury was authorized to find could not have occurred in the interim. There was testimony which the jury was entitled to consider as tending to show that the plant was out of order at the time of delivery. With that question, therefore, we have nothing to do. The conclusion is that the judgment must be affirmed. Affirmed. McBride and Benson, JJ., concur. Harris, J., concurs in the result.