Opinion
Argued at Pendleton October 27, 1931
Affirmed December 1, 1931 Rehearing denied January 12, 1932
Appeal from Circuit Court, Crook County, T.E.J. DUFFY, Judge.
Action by the Prineville Warehouse Company against G.C. Johnson and others. From an adverse judgment, defendants Johnson and Metropolitan Casualty Insurance Company of New York appeal.
AFFIRMED. REHEARING DENIED.
James L. Conley, of Portland (Calvin N. Souther, of Portland, on the brief), for appellants.
Donald M. Graham, of Prineville, for respondent.
In Banc.
On the 19th day of April, 1929, defendant, G.C. Johnson, entered into a contract with the State of Oregon, by and through the State Highway Commission for the building and construction of that part of a public highway known as the Pilot Butte-Horse Ridge Section of the Central Oregon Highway in Deschutes county, Oregon.
On the 26th day of April, 1929, pursuant to the provisions of said contract and the laws of the state of Oregon, relating to such contract, said defendant, Johnson, filed with the State Highway Commission a surety or indemnity bond signed and executed by the defendant, Metropolitan Casualty Insurance Company of New York, as surety, and the said defendant, Johnson, as principal.
Subsequently, said defendant, Johnson, entered into a contract with the defendant, H.E. Cross, subletting to said Cross certain portions of the work required to be done by Johnson under his contract with the state as aforesaid.
This is an action to recover the agreed price and the reasonable value of certain goods, wares and merchandise, alleged to have been sold by plaintiff to defendant, Cross, and used by said defendant in the prosecution of the work undertaken by him pursuant to his said contract with defendant, Johnson; and also to recover similarly upon an account of Arthur S. Michel and Sylvain O. Michel, copartners under the name of The Michel Grocery Company, for groceries likewise sold and delivered by said copartnership to said Cross and used by said Cross in carrying out his said subcontract, which account of said copartnership was assigned to plaintiff.
From a judgment in favor of plaintiff, as demanded in his complaint, except as to the value of nine bales of hay loaned by said Cross to another subcontractor, and for an attorney's fee in the sum of $150, defendants, Johnson and Metropolitan Casualty Insurance Company appeal.
In the appealing defendants' brief, there is but one assignment of error, and that is that the trial court erred in overruling their motion for nonsuit, for the reason, it is claimed by said defendants, that plaintiff failed to prove delivery of the supplies in question to the job.
No good purpose can be served by repeating the testimony in detail. Defendant, Cross, testified that the items included in plaintiff's statement of account and that of the assigned claim of said copartnership were received by him and, except nine bales of hay, were used on the job in question.
It is true that, upon cross-examination, while declaring that he thought he was stating the fact in saying the stuff was delivered to him, he further said he was not prepared to state the amounts and could not from memory identify each item.
The learned and experienced trial judge had the advantage of seeing and hearing the witnesses. His findings are supported by the record.
The plaintiff asks that, in case of an affirmance, an additional allowance be made as an attorney's fee in this court. The lower court allowed an attorney's fee of $150. Considering the amount involved, the extent of the record, and the fact that the case was submitted here without oral argument on the part of the appealing defendant, we believe that we are not justified in making any additional allowance.
Judgment affirmed.
BEAN, C.J., BROWN, RAND and BELT, JJ., concur.
ROSSMAN and CAMPBELL, JJ., did not participate in this decision.