Portland v. New England Casualty Co.

BENSON, J.

The defendants base their right to a reversal of the judgment upon two propositions: First, that the complaint does not state facts sufficient to constitute a cause of action; and, second, that the trial court erred in denying their motion for a judgment of nonsuit.

1. The sufficiency of the complaint is challenged upon two grounds. The first is, that food for horses is neither labor nor materials, and that payment therefor is not included in the obligations of the bond. Upon the point thus raised there appears to be a conflict of authority in other jurisdictions, but so far as this court is concerned, the question has been definitely settled, and a conclusion reached which is contrary to defendants’ contention, in the case of Clatsop County v. Fidelity & Deposit Co. of Maryland, ante, p. 2 ( 189 Pac. 207 ).

2, 3. Defendants further urge that the complaint is insufficient, in that it is not alleged therein that Tomlin-son, the subcontractor, entered upon or did any of the work he contracted to do. In the consideration of this *51 proposition, we observe that the sufficiency of the complaint was not questioned by demurrer, and that:

“A verdict will cure formal defects in a pleading, such as an imperfect statement, or the omission of formal allegations, and establishes every reasonable inference that ean be drawn from the facts stated”: Booth v. Moody, 30 Or.. 222 ( 46 Pac. 884 ).

Keeping this rule in mind, we turn to the complaint, from which we quote the following allegations:

“That on the thirteenth day of March, 1913, defendant W. L. Tomlinson entered into an agreement and contract with defendant Oregon Independent Paving Company to perform all the labor necessary to complete the grading of Nehalem Avenue from the west line of East 19th Street to the east line of Grand Avenue, City of Portland, Oregon, under resolution number 26165, hereinafter mentioned, and in the performance of said contract said W. L. Tomlinson worked a number of horses in grading Nehalem Avenue hereinafter mentioned.

“That J. W. Hansen, during the course of the improvement of said Nehalem Avenue, and between the thirteenth day of March, 1913, and the twenty-fifth day of July, 1913, furnished and supplied and delivered to said defendant W. L. Tomlinson, a large quantity of grain and feed for the horses working on said improvement, which was used in feeding said horses while working on the improvement of said Nehalem Avenue. ’ ’

After verdict, we think that these allegations sufficiently aver that Tomlinson entered upon the performance of the work under his contract, and the contention that the complaint is insufficient is not sustained.

4, 5. We turn then to the question of whether or not the motion for a judgment of nonsuit was properly denied. Defendants insist that the testimony nowhere discloses that the horses for which the feed was sup *52 plied were employed on the work under the contract referred to in the complaint. The evidence relating to the sale and delivery of the supplies for which a recovery is sought was furnished by the plaintiff and by his son, Arthur Hansen. The plaintiff himself testified that the subcontractor, Tomlinson, called at his place of business, and in arranging to purchase feed for his horses, told plaintiff that he had a contract with the defendant Oregon Independent Paving Company for completing the excavation and gradirig of Nehalem Avenue, and showed him the contract. He also says that the feed was to be delivered in the neighborhood' of the improvement; that two loads of the materials were called for by Tomlinson’s employees, and that they were then working on Nehalem Avenue; that on one occasion he went out to where the improvement was being carried on, and that the horses were then engaged on that work. Arthur Hansen testified that he delivered all of the supplies in person, except the two loads that were called for by Tomlinson’s men; that when he took out the first load, he did not know where the horses were stabled, and as it was late in the evening when he reached the place where the work was being carried on, on Nehalem Avenue, he asked one of the teamsters there, who replied that in about fifteen minutes they would all be going to the stables, and so he waited and went with them. He says that they had three temporary stables in the vicinity of the work, “about eight blocks south of Nehalem Avenue.” He also says: “These horses were working there on the job every time I was out there,” and “I was out there every time a load went out, all but the two loads. ’ ’ At the time of the trial, the subcontractor, Tomlinson, had disappeared and could not be found, and his foreman had moved to Ohio, and so plaintiff was unable to *53 secure their testimony. In the foreclosure of a materialman’s lien, it has been held that the materialman should not be required to watch the progress of a structure to see that every piece of material supplied by him was used therein, and that, if some of the material has been used elsewhere, it rests with the defendant to show that fact: Fitch v. Howitt, 32 Or. 396 ( 52 Pac. 192 ). We think that a similar course of reasoning may well be applied in a case like the one at bar. We are of the opinion that there was sufficient evidence upon the subject to justify its submission to the jury, and that it was not error to deny the motion for nonsuit. The judgment is therefore affirmed. Affirmed.

McBride, C. J., and Burnett and Harris, JJ., concur.