Dixon v. Johnson

Mr. Justice Wolverton,

after stating the facts as above, delivered the opinion of the court.

1. The first question presented is whether the circuit court erred in permitting the plaintiffs to amend their complaint in that court. It may be predicated of the complaint filed in the justice’s court that, at the worst, it contained a defective statement of a good cause of action, and *46 would liave "been sufficient after verdict. The amended pleading, it is conceded, states a good cause, both in form and substance, and, as it did not change the issues presented for trial, it was altogether proper to permit it to be filed in the circuit court: B. & C. Comp. § 2247; Monroe v. Northern Pac. Coal Min. Co. 5 Or. 509 .

2. The question presented by the defendant’s motion for judgment notwithstanding the verdict is not ]so clear ; but upon a critical examination of the separate answer, and construing it most favorably to the pleader, we think it manifest that it is frivolous, and constitutes no defense to the complaint. There is a seeming purpose to set up both a counterclaim and a specific defense to the duebill setup in the complaint. The allegations as to each,however, are so intermingled in the same pleading as to make them inseparable, neither being accompanied with sufficient of substance to enable it to stand alone. The contract by defendant and O.P. Johnson with Kelly, whereby he agreed to construct for them the building mentioned, and that by Kelly with plaintiffs, whereby they agreed to do the woodwork upon the building for Kelly, we may assume, as defendant’s counsel claim, were set up by way of inducement to the defense attempted to be interposed ; yet in that light,or in any reasonable view that might be taken of the allegations, they serve, not, as counsel contend, to establish a good defense, but rather to show that the plea is in reality frivolous and without matter of substance to uphold it. It will be observed that the work which it is alleged the plaintiffs omitted to perform under their contract with Kelly amounted to $150, and, discarding all extraneous matter, the allegations of the answer simply come to this: that defendant paid to plaintiffs $85 of this $150 before they performed the work specified, which plaintiffs promised and agreed to repay him. There was no obligation on the- part of plaintiffs to perform this work for *47 defendant, nor was there any obligation on the part of defendant to pay them for it. The correlative obligations were entirely between the plaintiffs and Kelly, so that the alleged overpayment was a mere voluntary act on the part of defendant, from which if there arose any implied promise on the part of plaintiffs to repay that sum it was not because of anything setup in the answer or of the relations existing between plaintiffs and defendant through the contracts alluded to. Conjoined with this allegation of plaintiffs’ promise to repay to defendant the $85, relied on as a set-off or counterclaim to plaintiffs’demand, is the averment of the failure on the part of plaintiffs to perform the work as they agreed, and their promise to complete it in the future according to contract with Kelly, which it is alleged constitutes the inducement or consideration for the execution of the duebill, and, having further alleged that plaintiffs have not yet performed such work, counsel insist that defendant is not bound upon the obligation because of a failure of consideration. This indicates to our minds an endeavor on the part of defendant to make the alleged noncompliance of plaintiffs with their engagements in their contract with Kelly in the particulars specified the basis or consideration for the support, both of the alleged overpayment or set-off and the duebill. But the contract, as we have seen, was wholly between the plaintiffs and Kelly, with which defendant had no contractual concern. Nor would plaintiffs’ failure to perform with any greater propriety constitute a valid consideration for a due-bill executed by defendant to plaintiffs, in the absence of a novation, or other transaction of that character, and none such is alleged or relied on. So that the defense wholly fails, from whatsoever standpoint it may be considered. The separate answer is therefore frivolous, if not sham, upon its face, and the motion for a judgment notwithstanding the verdict, based, as it is, upon the plaintiffs’ *48 failure to reply or to put in issue the alleged new matter set up in the answer, was properly denied. The defendant controverted the consideration for the duebill by his denials to the amended complaint, and succeeded in reducing the demand to $125, so that it appears he has had the benefit of the only defense he could make thereto, and has suffered no injury at the hands of the trial court. Its judgment should therefore be affirmed, and it is so ordered.

Affirmed.