Daily capital journal. (Salem, Oregon) 1903-1919, 1911-10-05

him; that the other expenses for boat
hire and provisions were purchased
upon his credit, Kinney not being
known there; that Johnston's bill
amounted to S210, of which plaintiff
has paid $96, leaving S1SS still due;
that ne paid 1884 for groceries and
lncidentals and became personally
liable for s6S.75 for boat hire. of
which he has paid S12.-. Johnston
testified that he contracted person.
ally with plaintiff, and did not look
to Kinney for his pay. Other facts
appear in the opinion.
Mcbride, ]. The testimony in the
case is conflicting, and while the
court might be inclined to form
vastly different conclusion from that
arrived at by the jury, yet, so far as
there is any testimony to sustain ii.
we are bound by their verdict as to
matters within the issues made bv
the pleadings Plaintiffs original
contract as he states it, was to 90 10
Marble creek and run his levels and
return and make his report. He tes-
tlhes that. when the leveling was
done, defendant directed him to re-
main there on the ground and that he
did so, pursuant to directions. TAX
ing this testimony as true, as we are
compelled to do after verdict. and
there being no new hiring or sugges-
tton of a different employment at
lower wages, we must assume that
both were acting under the assmup-
ton that the directions given were
pursuant to the original contract. es-
pecially as plaintiff had not returned
or made his report Plaintiff had au-
thOrity to employ assistance and
whether he abused that authority or
employed help unnecessarily was a
question of fact for the jury. John
ston's testimony on this trial would
estop him from claiming anything
from defendant in another suit. and
upon his statement of the case he
would have good cause of action
against plaintiff.
The principal cannot be held liza
bic where the other party. with full
knowledge as to who was the princi-
pal, and with the power of choosing
between him and the agent, las dis
tinctly and unQuestionably elected to
treat the agent alone as the party
liable" Mecham on Agency, Sec.
SOC.
1t was competent for plaintiff to
contract in his own name for the hire
of the boat and not having pledged
defendants credit, we see no good
reason why he should not recover.
The court erred in submitting to
the jury the claim for 81 days delay.
1t was not within the terms of the
contract, as stated, nor as testified to
by plaintiff. His compensation upon
the contract, as he states it, was to
begin when he should start to Mar
BILE creek. If Kinney agreed to COM
pensate him for delay, this would
constitute a new and separate con-
tract. 1t could not be "demurrage"
in a technical sense, because that is
a term applied to compensation pro-
vided in a marine contract for the
detention of a vessel. Taking the
word in the sense the parties proba
bly, meant, it would only mean rea-
sonable compensation for the delay,
and the amount of such compensa
ton would be a subject for pleading
and proof If, indeed, as stated, it
could give rise to any cause of tac-
ton whatever. But as the amount
enormously allowed upon this item
is certain, we can require it to be re-
mitted and affirm the judgment as to
the balance of the claim Mackey "
OLSEN, 12 Or. 429; Fiore V. Ladd, 30
Or. SOS; Cochran V. Baker, "a Or
555.
1t will be ordered. therefore. that
if plaintiff shall, within 80 days, eX-
pressly remit the sum of S2S5 from
the amount found due in the circuit
court, the Judgment will be affirmed
as to the residue, but that, failing to
do this, the judgment will be re-
versed AS defendant has been put
to the trouble and expense of an ap-
peal. he will recover his costs in this
court in any event.