56 P. 803 | Or. | 1899
after stating the facts, delivered the opinion of the court.
Upon the trial the defendant gave evidence tending to sustain the allegations of his answer, and to show that the goods in question were purchased by him as the agent of his wife, for use in a saloon owned and conducted by her. The plaintiff thereupon, in rebuttal, called one Liebe, who was permitted, over defendant’s objection, to testify in substance, that the defendant was in fact the owner of the saloon referred to, and that his wife’s name was used by him in conducting the business to enable him to defraud his creditors. At the proper time the defendant requested an instruction that the question of fraud was not involved in the'case, and should not be considered by the jury, which the court refused to give, but, on the contrary, instructed that: “In a transaction of that kind, you have the right to examine the various aspects for the purpose of determining what was the actual relation between the parties. If the object was to defraud, or to commit a fraud upon the creditors of the defendant, and if the business was carried on in his wife’s name as a mere cover for the purpose of carrying out that object, then, of course, it could not avail; it could not be upheld.” The giving of this instruction, the refusal to instruct as requested, and the admission of Liebe’s testimony, the defendant contends, were error; because not within the issues made by the pleadings;
Affirmed.