# Herring-Marvin Co. v. Smith

> Oregon Supreme Court · June 8, 1903 · 43 Or. 315

URL: https://www.frixlaw.com/law-library/cases/6899326

## Case

- **Full name:** HERRING-MARVIN CO. v. SMITH
- **Court:** Oregon Supreme Court
- **Decided:** June 8, 1903
- **Citations:** 43 Or. 315; 72 P. 704; 1903 Ore. LEXIS 59
- **Precedential status:** Published
- **Opinion:** On rehearing by Wolverton
- **Judges:** Wolverton
- **Cited by:** 19 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6899326

## Opinion text

On Motion eor Rehearing.
Mr. Justice Wolverton
delivered the opinion.
It is urged by a petition for rehearing on the part of the plaintiff that this court ought not to have considered the motion for a nonsuit, because (1) the testimony is not all contained in the bill of exceptions, and (2) it does not state the specific grounds upon which it is based.
7. Answering the first reason assigned, it is only necessary to state that by plaintiff’s own showing, which appears in the bill of exceptions, when read in connection with the pleadings and the contract, it is not entitled to recover. In such case it would be a matter of supererogation to bring up the whole evidence, because it could show no different state of facts which would in any way affect the company.
8. As to the second reason, it was argued at the time of the trial of the cause here, as respects the motion for non-suit, that the testimony did not support the cause of action preferred. This was simply controverted without insist *325 ing upon any such objections as that the grounds of the motion were not specifically stated, and the case was decided upon the issue thus presented. Having met the issue in the form indicated without success, it is now too late by motion for rehearing to insist upon the technical objection suggested.
The other contentions as to the proper construction of the contract have been treated of in the main opinion.
Rehearing Denied.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6899326. Public record. Not legal advice.