Nibley v. Delahunt

BURNETT, G. J. This action is in the nature of one for money had and received by the defendant for the use of the plaintiff. The latter, in substance, avers that she employed the defendant as her agent to sell for her certain real property, in pursuance whereof he afterwards reported to her that he had [47] secured a purchaser at the price of $5,500, whereupon she conveyed the property to the proposed purchaser and the defendant collected from the latter $5,800, accounted to the plaintiff for $5,500, and held the remaining $300, which he has not paid to her although he stipulated in the beginning that he would accept as his commission a lot of wood in the basement of the house on the premises valued at $50. The purport of the answer is a denial of the complaint and a statement that the defendant bought the property from the plaintiff for his own account for $5,500 and afterwards sold it for a profit of $300, which legitimately is his own. The reply traverses the new matter in the answer. A trial by the court without a jury resulted in findings and judgment for the plaintiff for $250, the balance remaining after deducting $50, the value of the wood, from the $300 retained from the actual selling price by the defendant. An appeal is taken by the defendant. In this action at law we are not concerned on this appeal with the mere weight of the testimony. Our examination of that feature of the record is limited to the determination of whether or not there is any evidence to sustain the findings of fact announced by the trial court. They are tantamount to a jury verdict in that respect and must be treated accordingly: Warren v. Dinwoodie, 88 Or. 342 (171 Pac. 1175), and precedents there cited by Mr. Justice Bean, delivering judgment. There is in the record ample oral testimony to the effect that the defendant was to procure a purchaser for the property and receive for his compensation the wood mentioned. That testimony was admitted without objection in this instance, as the record dis [48] closes, and in the absence of objection urged at tbe trial is sufficient to sustain tbe pivotal averment of tbe complaint to tbe effect that tbe plaintiff employed tbe defendant as ber agent to sell tbe property. Tbe record shows no exception to any ruling of tbe court in any respect. Ever since tbe decision of Kearney v. Snodgrass, 12 Or. 311, the rule has been that “it is not error, simply, but error legally excepted to, that constitutes ground for reversal.” Tbe doctrine is followed in State v. Tamler, 19 Or. 528; State v. Foot You, 24 Or. 61 (32 Pac. 1031); Watson v. Southern Oregon Co., 39 Or. 481 (65 Pac. 985); State v. Megorden, 49 Or. 259 (88 Pac. 306); Anderson v. Aupperle, 51 Or. 556 (95 Pac. 330); State v. McAvoy, 57 Or. 1 (109 Pac. 763); Olson v. Saxton, 86 Or. 670 (169 Pac. 119). According to tbe record, tbe very first time we find any challenge to the action of tbe trial court in any respect is in the assignment of error in this court. Tbe rule is fundamental that this is a court of which tbe function in appeals in law actions is to revise and correct tbe errors of tbe Circuit Court; but before this can be done, tbe Circuit Court must first have bad tbe opportunity to rule upon tbe point suggested as error, and objection to tbe ruling must have been made there and preserved in a bill of exceptions, before we can overturn tbe decision in question, unless, of course, lack of jurisdiction or insufficiency of pleading in statement of facts is involved. None of tbe assignments of error before us was even suggested to tbe trial court, and under these circumstances we can afford tbe defendant no relief, on this appeal. [49] Tlie plaintiff affirms that the defendant was her agent for the sale of her realty. He denies this and on the issues thus formed the verdict was for the plaintiff without any objection to any testimony. It is well nigh axiomatic that an agent cannot legitimately speculate on his principal’s property, but must account to the latter for the entire proceeds of such property. Indeed, this seems to be conceded by the defendant in principle. The rest follows as a logical sequence embodied in the judgment which is affirmed. Affirmed.