Outcault Advertising Co. v. Jones , 119 Or. 214 ( 1925 )

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] This is a motion to dismiss an appeal upon the ground that the plaintiff's cause was an action for money and damages only, and that the amount involved was less than $250 and therefore within the prohibition of Section 548, Or. L., as amended by Chapter 153, General Laws of Oregon for 1923, which is as follows:

"Sec. 548. Judgment or Decree, When Appealable. A judgment or decree may be reviewed on appeal as prescribed in this chapter and not otherwise. An order affecting a substantial right, and which in effect determines the action or suit so as to prevent a judgment or decree therein, or an interlocutory decree in a suit for the partition of real property, defining the rights of the parties to the suit and directing sale or partition, or a final order affecting a substantial right, and made in a proceeding after judgment or decree, or an order setting aside a judgment and granting a new trial, for the purpose of being reviewed on appeal, shall be deemed a judgment or decree, but no appeal to the supreme court shall be taken or allowed in any action for the recovery of money or damages only unless it appears from the pleadings in the case that the amount in controversy exceeds $250."

The situation here is different from that in Libby v.Southern Pacific Company, 109 Or. 449 (219 P. 604, 220 P. 1017), Moss v. Woodcock, 109 Or. 597 (220 P. 1017), and Drinker v. Ritter, Lowe Co., 110 Or. 431 (223 P. 725). In each of the above cases there was no issue excepting a direct one upon the quantum of money or damages. In this case the plaintiff brought an action in the common form to recover on a contract. The complaint alleged that defendant agreed to pay to plaintiff the sum of $109.20, payable in twelve monthly installments, in consideration that plaintiff furnish to defendant, in accordance with said contract, advertising service, and give to defendant exclusive right to the use of such service in the town of Gresham, Oregon, a copy of which contract was attached to the complaint. The complaint then alleged that plaintiff has performed its part of the contract and that defendant has defaulted and has failed to make any payment on the contract. The defendant answered, denying the material allegations of the complaint, and thereafter set up an equitable defense, alleging fraud and misrepresentation upon the part of plaintiff's agent in procuring the contract, probably sufficient, if true, to justify equitable relief, and concluding with a prayer that the court at the hearing of the suit enter a decree canceling the contract, and that defendant have a decree for costs and disbursements and other relief. The case was tried apparently upon the equity side of the court, and a decree rendered directing the cancellation of the contract on the ground of fraud in its procurement, and giving defendant his costs and disbursements.

Under Section 390, Or. L., as amended by Chapter 95 of the General Laws of Oregon for 1917, cross-bills were abolished and a defendant was allowed to set up an equitable defense to a legal cause of action. Thereupon the same proceedings could be had as in case of a cross-bill. In effect, the trial was required to proceed as a suit in equity. This practically transformed the case, so far as the trial was concerned, to an equitable proceeding, and the section limiting appeals in actions at law could not apply.

This is a very small case, the claim being for only $109.20 in the first place, and ought not to have been brought here to the detriment of more important matters. But it is here, and we can find no legal method of getting rid of it except to try it out upon its merits.

The motion to dismiss is overruled.

MOTION OVERRULED.