165 P. 1001 | Or. | 1917
delivered the opinion of the court.
“No person or persons carrying on, conducting or transacting business as aforesaid, or having any interest therein, shall hereafter be entitled to maintain any suit or action in any of the courts of this state without alleging and proving that such person or persons have filed a certificate as provided for in section 1 and .failure to file such certificate shall be prima facie evidence of fraud in securing credit.”
The plaintiff claims that Smith alone constituted the Duffy Auto Company; that he transferred the property in question to the defendant who continued under the same name, both without conforming to the statute mentioned. This enactment was construed in Beamish v. Noon, 76 Or. 415 (149 Pac. 522). The substance of that decision was that the statute merely disqualified the party from bringing an action and that the defect was waived by failing to answer or demur in case it appeared upon the face of the pleadings. A demurrer lies when the pleading attacked shows on its face, among other things, that the plaintiff has not legal capacity to sue: Section 68, L. O. L.
“If no objection be taken either by demurrer or answer, the defendant shall be deemed to have waived the same, excepting only the objection to the jurisdiction of the court, and the objection that the complaint does not state facts sufficient to constitute a cause of action. ’ ’
In alleging the property to be his own and demanding its redelivery, the defendant practically instituted a cross-complaint in replevin. If, on account of having acquired the title from one acting under an unregistered, assumed business name, or on account of his own like conduct he was disqualified to maintain the action, his adversary should have pleaded it either by demurrer or reply. Not having done so he has waived the same and cannot now urge it.
“Where fraud is an essential ingredient of the cause of action or defense it must be pleaded and proved. It is never presumed.”
To the same purport are Walker v. Goldsmith, 14 Or. 123 (12 Pac. 537); Leasure v. Forquer, 27 Or. 334 (41 Pac. 665), and Leavengood v. McGee, 50 Or. 233 (91 Pac. 453). The fraud of defendant and his vendor, although of statutory origin, constitutes a ground of defense on the part of the plaintiff against the defendant’s assertion of title. The legislation cited vests in creditors a right which when acting for themselves they are at liberty either to assert or ignore. If the trustee as their representative would avail himself of it he must plead it.
The contention of the plaintiff on this subject is presented in another form. The defendant as a witness on his own behalf testified about having advanced money to Smith, only part of which had been repaid, and to making an arrangement about August 28, 1915, whereby in consideration of that indebtedness and an additional sum of money then paid to bim Smith transferred the property in question to the defendant. The plaintiff sought to develop on cross-examination of the defendant all he claims with respect to the violation of the Bulk Sales Law and the statute against doing business under an unregistered assumed name. In Section 860, L. O. L., it is said:
“The adverse party may cross-examine the witness as to any matter stated in his direct examination, or*683 connected therewith, and in so doing, may pnt leading questions; but if he examine him as to other matters, such examination is to be subject to the same rules as a direct examination.”
The plaintiff is endeavoring to apply to the cross-examination what is styled in the note to St. Louis etc. Ry. Co. v. Raines, 17 Ann. Cas. 1, as the “Orthodox Rule.”. By that so-called precept
“when a party produces a witness who is sworn and examined, the opposing party is not confined in his cross-examination to the matters upon which the witness is examined in chief, but may extend the cross-examination to every issue in the case.”
On the contrary, as stated in the same note,
“according to the weight of authority in the United States, the cross-examination of a witness is limited to an inquiry into the facts and circumstances connected with the matters brought out on the direct examination of the witness.”
Section 860, L. O. L., is a statutory declaration of the American rule and in our judgment was properly applied by the Circuit Court. Reduced to its lowest terms, the contention of the plaintiff is that without pleading a defense to the defendants claim it may be proved by cross-examination of the defendant. The testimony sought to be adduced to establish the statutory fraud created by the Bulk Sales Law was irrelevant because there was no pleading to support it. The same may be said of the contentions of the plaintiff about the acts of Smith and Johnson constituting a preference within the meaning of the bankruptcy law. The rule is thus laid down in 2 Loveland on Bankruptcy, Section 545.
*685 “In a suit to recover a preference the trustee should allege and prove the filing of the petition in bankruptcy, the adjudication and his appointment and qualification as trustee of the estate of the bankrupt. * * He should also allege and prove all the statutory elements constituting a preference, and that the person receiving it, or his agent, had a reasonable cause to believe that it was in effect a preference. * * If the trustee fails to allege any one of these elements, his bill, declaration or petition is had on demurrer.”
Various assignments of error are pressed upon our attention, hut fairly considered, they all urge upon us a question which should have been pleaded but was not. The judgment of the Circuit Court is affirmed.
Affirmed. Rehearing Denied.
Filed October 16, 1917.
Supplemental Opinion.
(167 Pac. 1014.)
Department 1. Mr. Justice Burnett delivered the opinion of the court.
9. Subdivision 40 of Section 799, L. O. L., is in these words:
“Every sale of personal property, capable of immediate delivery to the purchaser, and every assignment of such property, by way of mortgage or security, or upon any condition whatever, unless the same be accompanied by an immediate delivery, and he followed by an actual and continued change of possession, creates a presumption of fraud as against the creditors of the seller or assignor, during his possession, or as*686 against subsequent purchasers in good faith and for a valuable consideration, disputable only by making it appear on the part of the person claiming under such sale or assignment that the same was made in good faith, for a sufficient consideration, and without intent to defraud such creditors or purchasers; but the presumption herein specified does not exist in the case of a mortgage duly filed or recorded as provided by law.”
Among others, it was assigned as error that the trial court refused to give an instruction to the jury embodying this excerpt from the code. The principal effort of the former opinion was to enunciate the doctrine that he who would attack for fraud a transaction valid as between the immediate parties to it, must allege and prove the deceit upon which he relies; and that not having put in such a plea, the plaintiff must fail in his assault upon the title of the defendant along that line. All that., was said in our former opinion relating to the requested charge now under consideration was in the last paragraph which grouped all the assignments of error, not otherwise treated in detail, and dismissed them as urging upon us matter which should have been but was not pleaded. This is sufficiently amplified in this supplemental opinion by the statement that the only application possible to be made of the desired instruction would be to an issue of fraud which as already stated is not raised by the pleadings. It would have directed the jury into the investigation of an abstract question foreign to the case and for that reason would have been erroneous.