Smith v. Kinney
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Opinion of the Court
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Mr. Justice Burnett
delivered the opinion of the court.
1. The so-called bill of exceptions presented in this case consists of a verbatim report of tbe testimony of tbe witnesses, tbe objections of counsel, and tbe rulings of tbe court as they occurred at tbe trial. It has been so often announced by this court that such a document ,does not constitute a bill of exceptions, except for tbe purpose of determining whether a nonsuit or a directed verdict was properly granted, that we will not lengthen this opinion by a quotation of tbe authorities, except to state that tbe latest one is National Council of Knights & Ladies of Security v. McGinn, 70 Or. 457 ( 138 Pac. 493 ). Tbe only purpose, therefore, for which this alleged bill of exceptions will be considered is to determine whether tbe court properly directed a verdict in this case.
*518
2. It appears in evidence that in payment for the steamer the defendant issued to the plaintiff and his assignors three certificates of the following tenor:
“Received of F. A. Smith $3,000 for investment on my own judgment, I to have one half of net profits, principal and 6 per cent interest guaranteed. Money subject to withdrawal at any time on sixty days ’ notice. Report to be made monthly.
“Empire, Oregon, April 25, 1910.
“ [Signed] ■ L. D. Kinney,
“Proprietor.
“George M. Everett,
“Cashier of Pool.
“E. R. Peterson,
“Secretary of Pool.”
Reverting to the allegation of the complaint quoted, it will be observed that there is no statement that any profits had actually been earned. It is only there said that the defendant represented that the certificate had earned $3,000 in addition to its face. This allegation was denied, and hence in any view of the case it became necessary for the plaintiff to prove it. The only testimony on that subject is to the effect, as stated by the witness McLain, that after the issuance of the first certificate the defendant called the witness into the former’s office at North Bend. His testimony continues in this language, referring to the defendant:
“He said that these old certificates were issued on a valuation of $125 each on the lots in that pool, and he had changed the valuation, doubled the valuation, and he was going to call in the old certificates and issue new certificates for double the amount on account of the raise of all the lots, by his own request.”
This does not amount to proof of the allegation that the defendant represented the certificate to have earned $3,000, much less does it amount to proof that *519 any profits had been made on the supposed investment. All that it amounts to is that the defendant arbitrarily inflated his paper by 100 per cent. Laying aside the strong flavor of usury with which the transaction is tainted and the enormity of doubling the actual indebtedness for the investment in the vessel, it is apparent that the court erred in directing a verdict according to the prayer of the complaint, because the testimony did not prove the disputed allegation.
For want of a proper bill of exceptions we decline to consider whether or not the defendant was entitled to prove his allegation of the fraud which induced him to assume the obligation of paying for the steamboat, as well as the other questions assigned as errors.
The judgment is reversed and the cause remanded for further proceedings.
Reversed. Rehearing Denied.
Motion to Retax Costs Allowed.
Mr. Chief Justice McBride, Mr. Justice Moore and Mr. Justice Ramsey concur.
Denied September 22, 1914.
On Rehearing
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On Petition for Rehearing.
( 143 Pac. 1126 .)
Mr. Justice Burnett
delivered the opinion of the court.
In a petition for rehearing it is strongly urged that the issue and acceptance of the three so-called “pool certificates” for $6,000 each, upon which the action is maintained in three counts, constituted an account *520 stated binding upon the court, and precluding inquiry into the original transaction upon which it is based.
3. The complaint gives a history of all the evidence and draws the conclusion that the result was “an account stated. ” As a question of pleading, the case is much like Nicoll v. Haas, 5 App. Div. 206 ( 39 N. Y. Supp. 205 ), where the court said:
‘ ‘ The words really amount to nothing more than the plaintiff \s conclusion as to the effect of a part of his evidence. Having fully stated his real cause of action, he adds that he has rendered bills therefor which were agreed to, and that thus this cause of action ‘stands as account stated. ’ This is pleading evidence and a conclusion therefrom. But it is not a substantial plea of an account stated. ’ ’
It is manifest that between April 25, 1910, the date of the original “pool certificates,” and June 1, 1910, when the new ones were issued in denominations of $6,000 each, nothing could have occurred to double the amounts except “profits.” Only such gains would constitute the subject matter of an accounting with such a result. Something to be accounted for is as necessary to a stated account as the parties themselves. Common sense requires us to look at the substance of things, and, if there were no “profits” (and the complaint does not allege there were any), there could be no accounting for them.
4. If there were no other issues involved in the pleadings, as, for instance, the one about the alleged fraud of the plaintiff and his associates concerning the condition of the vessel as to seaworthiness, whereby the defendant was induced to assume the obligation in question, we might render judgment here for the plaintiff for $9,000, the original purchase price and interest. We would probably be justified in that' disposition of *521 the case under this clause found in Article VII, Sec-, tion 3 of the Constitution of the state:
‘ ‘ Or if, in any respect, the judgment appealed from should be changed, and the Supreme Court shall be of opinion that it can determine what judgment should have been entered in the court below, it shall direct such judgment to be entered in the same manner and with like effect as decrees are now entered in equity cases on appeal to the Supreme Court.”
However, having no evidence on such other issues, we cannot apply this part of the fundamental law, and the case must of necessity be returned to the Circuit Court for proper adjustment.
The petition for rehearing is denied.
Rehearing Denied.
Motion to Retax Costs Allowed.
Allowed October 6, 1614.
On Motion to Retax Costs.
( 143 Pac. 1126 .)
Opinion Per Curiam.
In his motion to retax costs and disbursements, the plaintiff objects to matter printed in the defendant’s abstract as follows: (1) Twenty-seven and one-half pages of quotations from the testimony accompanied by objections of counsel and the rulings of the trial court upon them, all being a compilation from the bill of exceptions; (2) three pages* devoted to printing the notice of appeal and undertaking; and (3) three pages stating the assignments of error.
5. The statutory rule is that “a party entitled to costs shall also be allowed for all necessary disbursements”: Section 566, L. O. L. The question, therefore, *522 is whether the items mentioned are necessary printing expenses. As decided in the original opinion, following numerous precedents, the bill of exceptions being a verbatim report of everything spoken at the hearing, without classification or segregation as to the errors of law-suggested, it could be considered only for the purpose of determining whether it was a mistake to direct a verdict for the plaintiff. In that form it was not sufficient to raise the numerous questions raised by the excerpts printed in the abstract. Not having a proper bill of exceptions behind it, all the matter in the abstract under that head was useless, and hence the expense of printing was not a necessary disbursement.
6. Copies of the notice of appeal and undertaking are made part of the transcript to be filed by the appellant, under the terms of Section 554, L. O. L. It is therefore not necessary to print the same matter in the abstract.
7. We cannot allow the omnibus objection to the printed assignments of error, for it includes the statement that the court erred in sustaining the motion of plaintiff’s counsel for a directed verdict. This is a proper specification of error and must operate as the saving leaven for the whole lump in this feature of the case, seeing that the objection includes it with other matter which might be held unnecessary.
On the ground that the same is not a necessary disbursement, under the well-established rules about the frame of a bill of exceptions, the objections will be sustained as to specifications 1 and 2. The remaining objection will be denied, because it includes a legitimate assignment of error with others which might have been eliminated under a challenge applied to them only. The costs and disbursements will therefore be retaxed in favor of the defendant as follows;
*523 Filing fee.................................$ 15 00
County clerk for transcript.................. 3 35
Printing abstract 70 pages at $1.00.....$70 00
Deduct 30% pages superfluous as stated. 30 50 39 50
Printing brief............................. 24 00
Costs.................................... 15 00
Trial fee.................................. 6 00
Total.................................$102 85
Por which judgment will be entered in favor of the defendant.
Motion to Betas Costs Allowed.
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