Daily capital journal. (Salem, Oregon) 1903-1919, 1911-08-10
and Morrison '. Eranck,
MuItnOmah County.

Finley Morrison and NllhdM D.
Morrison, partners doing business
under the firm name Of Finley Nor
rison & Son, respondents, v j. B
Franck, appellant Appeal from the
circuit court for MultnOmah county
The Hon. John B. Cleland, judge. Ar
gued and submitted July 20, 1911. A.
B. Coevert, ]. F. Boothe and &c. W..
Stapleton, on brief for respondents.
Robert Treat Platt (Platt & Plat, on
brieD for appellant. Eakin, {. D.
I Affirmed.
This is an action to recover part OF
| the commission earned from a sale OF
real estate.
The complaint alleges that D. C.
Pelton being the owner of certain
timber land, authorized the plaintiffs
to sell the same at the price Of $780,
900, for which they SHOULD receive, as
compensation. five per cent OF the
sale price such authority extending
until April Z, 1903; that during
March, 1909, plaintiffs offered the
land to the Crossetr Timber COM
pany, through its representative, A.
Sprague; that defendant also had au-
thority from Pelton to sell the land
on the same terms and that he was
endeavoring to sell It to the same
party; that the CrOssett Timber com
pany agreed TO purchase it If plain
tiffs and defendant would come to
some agreement between themselves
and Pelton, as to the division of the
commission; and "thereupOn, in or
der to effect a sale plaintiffs
and the defendant entered into an
agreement whereby the plaintiffs
wolld discontinue offering the same
to any other party and assist the de-
fendant in making a sale Of said
lands to the CrOssett Timber COM
pany, and if a sale should be made
through their joint efforts or by
either the plaintiffs or the defen-
dant to said Crossett Timber COM
pany, then the plaintiffs were to re-
ceive. as their portion of said COM
mission the sum of S250O,' less
$3.50. a portion of the expense of
defendants that "the plaintiffs per-
formed services for the defendant
which resulted in the making of a
sale of said lands TO the Crossett
Timber company AMI the defendant
received the said commission of $1O,-
600 and has neglected and refused to
pay the plaintiffs said sum of
S244125, or any part thereof"
The answer denied the allegations
Of the complaint, except it admits
that defendant had authority to and
did sell the land Trial was had be-
fore jury and verdict rendered in
favor of plaintiffs for the sum of
1866, and from a Judgment there
on defendant appeals
Eakin, c. ]. First, plaintiffs move
the court to affirm the Judgment of
the lower court, for the reason that
there is no proper bill of exceptions
certified to this court. Such motion
vas filed en- June 26, 1910 and de-
MED on October 4, 1910 (110 Pac.
1O9O), for the reason that it was not
| filed within the time prescribed by
/ rule 20 of this court, as amended
/ Oct. 20, 1909. The abstract at page
6 states that the following proceed
ings were then had, as shown by the
bill of exceptions" which thereafter
purpOrts to contain the bill of eX-
ceptions in full. The motion for the
nonsuit appears at page Sc of the alb
stract, where it is stated: This was
all the testimony introduced upon
/ the presentation Of plaintiffs case in
chief The motion for a directed
verdict appears at page 1856, preced,
ing which it is stated: "The forego.
ing was all Of the testimony offered
in this cause by either party there
/ to- Pages 1856 to 156 contain state
ment Of the exceptions, arising upon
the admission of testimony, and the
instructions to the jury with such a
statement Of the evidence as was
deemed necessary to explain the ex.
/ ceptions. The separate statement OF
] the exceptions and facts, necessary
/ to q proper understanding of them is
sufficient as shown in the abstract
but plaintiffs raise the question that
the bill of exceptions is not properly
certified to this court. contending
/ that the certified copy of the bill OF
/ exceptions, as settled and s''yned by
the judge, should be filed in this
court This question must be deter
mined by reference to Sec. 554 L. o
L., and rules of the supreme cour
numbers and g. ESQ Or. $40. 574
BY rule 13, adopted August 3
1894 GA Or 60D provision was mad,
for filing the abstract This rule
was approved in Fratt v. Wilson. 81
Or. 542, but was only available upor
the stipulation of counsel There.
after in 1899 the legislature amend.
/ ed Sec. 541 H. (Sec. 554 L. o. Id by
which it is provided that Upon the
appeal being perfected, the appel
liant shall, within 80 days thereafter
file with the clerk of the appellat,
/ court transcript or such an alb
stract as the rules of the appelat,
court may require of so much of the
record as may be necessary to intel
ligiby present the questions to b,
decided by the appellate tribunal.
Until that amendment the filing o
the transcript was essential to brins
the case en- appeal to this court un
less it was waived by stimulation
BY authority of that amendment
rule l3 was amended on July ., 1900
SO as to make the abstract take the
place of the transcript in civil cases
BY rule 9, which specifies what shall
be contained in the abstract. refer
ring to the recital of proceedings OF
the trial, II is stated: set out 81
much of the bill of exceptions. or tn,
substance thereof, as is necessary t.
show the rulings of the court t
which exceptions were taken durins
the progress Of the trial, and which
will be urged as error on the appeal
and no more" so Or. 576). And by