draw from the jury the question of fraud. It is urged in support of this position that the allegations of the answer are insufficient to constitute the defense of fraud, and that there is no proof if the allegations had been sufficient. As the case must be reversed and remanded for a new trial, defects in the answer, if any, may be cured by amendment; and, as the evidence may be different on another trial from that contained in the record, we shall pass this question without deciding. There are several other questions made in the briefs and argued by counsel, but as they are closely allied to the principal one discussed, and may not arise on another trial, we shall refrain from discussing them at this time. REVERSED. Decided 4 May, 1901. ON PETITION FOR REHEARING. MR. CHIEF JUSTICE BEAN delivered the opinion. 3. The objection to the instruction complained of was a general one, and challenged its sufficiency as a matter of law (Nickum v. Gaston, 24 Or. 380, 33 Pac. 671, 35 Pac. 31); and hence plaintiffs were entitled to contend in this court that it was erroneous, because it left the construction of a written instrument to the jury, although the trial in the court below may have proceeded in the main on the theory that the plaintiffs' authority rested partly in parol and partly in writing, and was therefore a question of fact for the jury. Indeed, it would seem natural that such a theory should have prevailed; for it was not until after plaintiffs' testimony was all in, and Mr. Williams, the manager of defendant company, testifying on its behalf, said that the clause in the letter of August 22 in reference to the settlement of the dispute concerning the quality of the lumber was added by him, at Mr. Burns' request, for the purpose of putting plaintiffs' authority in writing, that it appeared that plaintiffs' authority rested wholly in writing. This, perhaps, explains the reason for the introduction by plaintiffs of some of the testimony referred to in the petition, and also disposes of the contention that the question of plaintiffs' authority was properly submitted to the jury because it rested partly in parol. We have not considered the question as to whether the agreement between plaintiffs and the defendant in reference to the settlement of the dispute, and the subsequent action had thereon, was a submission to arbitration and an award, because it is not presented by the record, nor was it discussed at the argument. All we decide is that the defendant, by the letter of August 22, authorized the plaintiffs, through their Chilean house, to settle and adjust the dispute at the port of discharge concerning the quality of the lumber. Whether in making the settlement the plaintiffs and their representatives acted honestly and in good faith is a question hereafter to be determined. The petition is denied. Under Hill's Ann. Laws, § 2055, subd. 4, requiring a justice of the peace to enter in his docket "the time when the parties appear, or their failure to do so," the docket must show the facts, not conclusions; thus, an entry made several days after the return day named in the summons, stating that the defendant had been regularly served and had "failed to answer the complaint as required by law," is not sufficient to support a judgment, as against a direct attack, because it does not necessarily show that the defendant did not appear at the proper time and place as required. From Multnomah: ALFRED F. SEARS, JR., Judge. Action by A. M. Osburn against the Guaranty Savings & Loan Association. Judgment for plaintiff in justice's court. Defendant sued out writ of review to set aside said judgment for insufficient service of summons. From the judgment rendered, the Association appeals. REVERSED. For appellant there was a brief over the names of Guy G. Willis and Fred L. Keenan, with an oral argument by Mr. Willis. For respondent there was a brief over the names of Wm. Reid, Dell Stuart and J. Wesley Bell, with an oral argument by Mr. Stuart. MR. CHIEF JUSTICE BEAN delivered the opinion. On June 23, 1898, the defendant, Osburn, commenced an action against the plaintiff corporation in the Justice's Court for East Portland District to recover the statutory penalty (Hill's Ann. Laws, § 3034), for a failure to release or discharge a mortgage, and for $150 special damages. The summons required the defendant to appear on the thirtieth of June, at 9 o'clock in the forenoon, at the office of the justice, to answer the complaint. It was issued, returned, and filed on the twenty-third, with an indorsement of service thereon; but no subsequent entry was made in the justice's docket, or action taken in the case, so far as the record shows, until July 6, when the following entry was made: "Comes now the plaintiff, by his attorney, Wm. Reid, and moves the court for a judgment by default; and, it appearing to the court that the defendant has been regularly served with summons and complaint, and the defendant has failed to answer the complaint as required by law, it is considered that the plaintiff recover of the defendant the sum of two hundred and four dollars, and his disbursements, taxed at three dollars, and that execution issue therefor." On August 13, 1898, the plaintiff sued out a writ of review to set aside and annul such judgment, on the ground that the return of service indorsed on the summons was insufficient to give the court jurisdiction, and that it does not appear from the entries in the justice's docket that it was in default. The court below remitted the special damages, but affirmed the judgment as to the statutory penalty, and the plaintiff appeals. The sufficiency of the return need not be determined, as the other defect is fatal to the judgment. It was rendered some seven or eight days after the return day of the summons, and yet there is nothing in the record to show that plaintiff failed to appear on the return day, or was in default. So far as the record discloses, it may have appeared at the time and place specified in the summons to defend the action, and neither the plaintiff in the action nor the justice have been present. If so, clearly a judgment for want of an answer could not be rendered against it a week or ten days later. The justice is required by the statute to enter in his docket the failure of a party to appear: Hill's Ann. Laws, § 2055, subd. 4. And there must be a substantial compliance with the requirement, to authorize the entry of a judgment by default which will not be subject to a direct attack: 6 Enc. Pl. & Prac. 54. Where the record of a justice of the peace shows that the court convened at the time and place specified in the summons, and after waiting the statutory time a judgment was rendered against a defendant for want of an answer, it will perhaps be sufficient, although no formal default was entered, as the record actually made is practically equivalent thereto: Hardy v. Miller, 11 Neb. 395 (9 N. W. 475). But, when the judgment is rendered some days later, the mere recital that it was entered for want of an answer is insufficient, because it is not inconsistent with an appearance of the defendant at the time and place specified in the summons. Nor will the statement that it was entered for want of an answer "as required by law" cure the defect, since that is but a conclusion, and does not necessarily show that the defendant did not appear at the proper time and place in obedience to the requirements of the summons. The judgment of the court below is therefore reversed, and the cause will be remanded, with directions to remand it to the justice's court for such further proceedings as may be proper, not inconsistent with this opinion. REVERSED. Argued 12 February; decided 15 April, 1901. ACCOUNT STATED QUESTION FOR JURY. 1. Unless a debtor objects within a reasonable time to an account preIsented it will be considered as stated. If the facts are clear or undis puted, the court should declare the account to be stated; and if otherwise, the disputed facts and the question whether the delay in objecting was reasonable should be left to the jury under proper instructions. ACCOUNT STATED - EFFECT OF DISPUTE. 2. An account rendered will not become an account stated unless objected to within a reasonable time, where there is a dispute as to the construction of the contract under which the transactions mentioned in the account took place. INSTRUCTIONS MUST APPLY TO THE CASE IN HAND. 3. An instruction is properly refused when it is based on a state of facts not found in the case. HARMLESS ERROR NOT REVERSIBLE ERROR. 4. An erroneous instruction will not justify a reversal of a case, when it was manifestly harmless. EVIDENCE TO PROVE SPECIFIC ITEM ADMITTED PAYMENT. 5. In an action on an account, where defendant alleged that he had paid a certain amount, and plaintiff admitted such payment in his reply, evidence to show that a particular payment charged against plaintiff had never in fact been made was properly admitted, since plaintiff's admission that an aggregate sum had been paid was not an admission that any particular item went to make up the aggregate. From Coos: JAMES W. HAMILTON, Judge. 38 571 38 580 38 571 45 261 |