Ross v. Crosby ( 1925 )

Vinje, C. J.

It may be a subject of doubt whether the finding of the jury negatived the claim that a written contract was entered into by and through the signature of plaintiff’s brother. Such a contract may have been made and yet at the same time an agreement for a different contract to be executed later may also have been made. But since both parties are of the view that the finding of the jury to the effect that an oral- agreement was entered into different from the written’ contract negatived the execution of the written contract, we will let the matter rest there. It is apparent from a perusal of the testimony that the question submitted is not .exactly in accordance with it. The question submitted finds that an agreement was made to make a written contract in. the future. The testimony is to the effect that the oral agreement was then presently made that the green timber should be put in at $8 per thousand and that a written contract to that effect would thereafter be executed. In view of this testimony, which is uncontra-dicted, it must be held that upon plaintiff’s testimony an oral agreement was entered into to pay $8 per thousand for the green logs. The plaintiff testified as follows-.

“I said I was to get the same as the other jobber -was getting about one and one-half miles from my camp in regard to green logs. The agreement then was $3 per cord for the pulp; $5 per thousand feet to pick up and skid the scattered logs now lying in the woods; and for the green logs I was to get what another jobber was getting near me. ... At that time I knew that the other jobber had been getting $8 per thousand feet for the green timber.”

He further testified: “When I started on the green timber cutting I relied upon Mr. Clark’s statement made in August that I would receive the same as the other jobber was getting for the green logs.”

It is apparent from this testimony, if the plaintiff is to be believed, that he entered into an oral agreement, which was subsequently to be reduced to writing, to the effect that he should be paid $8 for the green logs instead of $5.50 as provided for in the contract signed by his brother. This being so, the court erred in allowing the plaintiff to recover upon a quantum meruit for the services rendered. It appears by this testimony, as substantially found by the jury, that he was working under an oral contract and not acting as foreman for the defendant. The court should have taken an accounting and found out how much, if any, the defendant owed the plaintiff upon the basis of the oral agreement testified to and found by the jury, instead of allowing him to recover monthly wages for the services rendered. For this reason the judgment must be reversed, and the cause remanded with directions to take an accounting upon the basis that the services were performed under the oral contract testified to by the plaintiff and found by the jury to exist, and render judgment for plaintiff for such sum as may be found due him under the contract so established by the testimony.

By the Court. — It is so ordered.