Chamberlain v. Townsend

Mr. Justice Burnett

delivered the opinion of the court.

1, 2. The first error assigned is that the court erred in overruling the defendants’ motion to require the plaintiff to elect as stated. This presupposes that three forms of action for the same liability are set forth in the complaint. An inspection of that pleading shows that it contains only a statement of a cause of action for labor and services rendered by the plaintiff to the defendants. True enough, it is said, as quoted above, that this was a necessary family expense. That, however, states only a conclusion of law, and does not disclose facts from which the court can draw such a conclusion.

3. In Dodd v. St. John, 22 Or. 250, 254 ( 29 Pac. 618 , 15 L. R. A. 717), Mr. Chief Justice Strahan, quoting with approval Fitzgerald v. McCarty, 55 Iowa, 702 ( 8 N. W. 646 ), says:

“It was held that it was essential to constitute a family expense that the thing for which the expenditure was incurred should have been kept for use in the family. It is the expenses of the family which, under the statute, are chargeable on the property of *211 both husband and wife. This implies, we think, that the expense must be incurred for something used in the family, or kept for use, or be beneficial thereto.”

We think the statute in question, providing that “the expense of the family and education of the children are chargeable upon the property of both husband and wife, or of either of them, and in relation thereto they may be sued jointly or separately,” means the expenses for the immediate sustenance and comfort of the family. It does not contemplate expenses incurred in the management of a business conducted by either spouse, or by both of them. It seems from the complaint that the defendants were engaged in farming and fruit-raising, and in the course thereof employed the plaintiff to labor for them in carrying on that enterprise. The complaint does not state facts sufficient to bring it within the statute last quoted.

4. Again, referring to the averment about having given three days’ notice of his intention to quit employment, etc., we do not think this states a statutory liability. The statute of February 25, 1907 (Laws 1907, p. 313), embodied in Sections 5066, 5067 and 5068, L. O. L., was entitled:

“An act to prohibit the issuance of non-negotiable acknowledgments of indebtedness in payment for wages due employees,- providing how acknowledgments of such indebtedness shall be paid, fixing the time when certain wages shall become due, and providing for the collection of reasonable attorney’s fees in actions to recover wages.”

Section 3 of that act, being Section 5068, L. O. L., provides:

“In any action for the collection of any such order, check, memorandum, or other acknowledgment of in *212 debtedness, or in any action by an employee against an employer for the collection of wages, if it is shown that such order, check, memorandum, or other acknowledgment of indebtedness, or said wages were not paid for a period of 48 hours after proper demand for the payment thereof, the court may, in its discretion, upon entering judgment for the plaintiff, include in such judgment, in addition to the costs and disbursements otherwise prescribed by statute, a reasonable sum for attorney’s fees for prosecuting said action; provided, such employee shall have given not less than three days’ notice of his intention to quit his employment.”

Here no question is made about any non-negotiable acknowledgment of indebtedness mentioned in the title of the act,' of which this section is a part, and the facts stated in the complaint do not bring this action within the purview of the statute. Eliminating, as we must, the question of the liability of husband and wife for family expenses, and the other question of action upon non-negotiable acknowledgments of indebtedness for wages, we have left only one cause of action properly stated in the complaint, viz., for labor and services rendered at the special instance and request of the defendants. The court, therefore, was right in overruling the motion to elect, for there was no election to be made under the complaint in this action. Moreover, in Harvey v. Southern Pac. Co., 46 Or. 505 ( 80 Pac. 1061 ), it is held that it is within the discretion of the court whether to order an election in such cases or not.

5. The second error assigned is that r

“The court erred in overruling appellant’s objection to the testimony of the plaintiff and in permitting him to answer concerning the agreed value of the services rendered.”

*213 In an action on the quantum meruit it is admissible to show that the defendant agreed to pay what is assigned as the reasonable value, on the principle that it is not likely that the defendant would agree to pay an unreasonable amount for the services rendered. It is a circumstance for the consideration of the jury: West v. Eley, 39 Or. 461 ( 65 Pac. 798 .)

6. The third and most important assignment of error is that the court erred in sustaining the plaintiff’s objection to any testimony respecting the alleged conversion and damage of personal property belonging to the defendants. It is said in Section 74, L. O. L.:

“The counterclaim * * must be one existing in favor of a defendant, and against a plaintiff, between whom a several judgment might be had in the action, and arising out of one of the following causes of action 1. A cause of action arising out of the contract, or transaction set forth in the complaint, as the foundation of the plaintiff’s claim. * * ”

All that is said in the answer concerning the tort alleged is that it happened during the time the plaintiff was working for the defendants. No fact is stated showing that it grew out of or was connected with the labor performed. It does not follow that because the wrongs of which complaint is made happened at or about the time the services sued on were being rendered, they arose out of the transaction set forth in the complaint. It does not come within the purview of a counterclaim as defined by Section 74, L. O. L.

The court was right in all its rulings questioned, and the judgment is affirmed.

Affirmed. Rehearing Denied.

Mr. Justice Moore, Mr. Justice Ramsey and Mr. Justice Eakin concur.