Daly v. Larsen

Trial by Court — Findings on Material Issues.— The court sitting as a jury should make findings of fact on the material issues made by the pleadings, and unless it does so the case will be remanded for further proceedings: Moody v. Richards, 29 Or. 282, approved and followed.

From Multnomah: E. D. Shattuck, Judge. The complaint herein contains twenty-seven separate causes of action, all similarly stated. The defense to each . of said causes set up in the answer is also of a like nature, so that it will only be necessary to an understanding of the case to summarize the pleadings of a single cause. By the complaint, in the one selected, it is set forth, in effect, that between the first and twenty-fourth days of July, eighteen hundred and ninety-four, one Joe Barbara, at the special instance and request of E. S. Larsen, performed work, labor, and services on his (Larsen’s) contract to dig and construct an irrigating ditch or canal, and to clear certain lands in Wasco County, Oregon, of the reasonable value of ten and fifty hundredths dollars, no part of which sum has been paid except three and thirty-three hundredths dollars, leaving a balance due from defendant to Barhara of seven and seventeen hundredths dollars; that before the bringing of this action the last named sum and claim was for a valuable consideration duly assigned to plaintiff F. A. Daly. The answer consists of denials only, and controverts each and every allegation of the complaint. Trial was had before the court without a jury, which made but two findings of fact. The first is, in effect, that the assignment of four of the claims was not properly evidenced, hence the plaintiff was without title thereto. By the second the court finds “That the following claims were duly issued by the agents of the defendant, and properly indorsed and transferred to the plaintiff by the parties to whom they were issued, and therefore the said defendant is liable for the several amounts due on the said following claims, to wit:— "No, Name. Countersigned by. Amount. “5. E. S. Burlingame------J. H. Crawford------$50 00 “6. E. S. Burlingame------J. H. Crawford------ 50 00” Then follows fourteen other names with the name of the person by whom countersigned and the .amount of each claim, making a total of seven hundred and thirty-one dollars and fifty-eight cents. From this finding the court deduces the following conclusion of law: That the plaintiff is entitled to a judgment against the defendant for the sum of seven hundred and thirty-one dollars and thirty-eight cents, and for costs and disbursements of the action. Judgment was rendered accordingly, and the -defendant appeals.