61 P. 639 | Or. | 1900
delivered the opinion.
This is an appeal from part of a decree in a suit brought by plaintiff’s intestate to dissolve a partnership and for an accounting. The only question for the consideration of this court is whether two tracts of land, known and referred to in the record as the “Timber Culture Claim” and the “Weaver Place,” belong to, and are part of, the partnership assets. On November 17, 1885, the plaintiff’s intestate, R. M. Steel, and the defendant, Adams, entered into a partnership, to continue for ten years, under the firm name and style of Steel & Adams, for the purpose of carrying on the business of
The questions presented are, first, whether Adams’ timber culture claim is part of the assets of the partnership. At the time of its formation, there were present and participating in the negotiations, R. M. Steel, his son, George A. Steel, and the defendant, Adams, and upon the testimony of these three persons must the question be determined. R. M. Steel, in referring to the matter, says, in answer to interrogatory No. 16 : “Two thousand dollars of the amount furnished by me to the firm of Steel & Adams, on November 18, 1885, which was paid to I. H. Adams immediately after coming into possession of the firm, was invested in land, that
George A. Steel, the confidential clerk and accountant of his father, took part in the negotiations leading to the formation of the partnership, and has since been more or less familiar with its business. He says, in answer to
As explaining why Adams’ note for $1,800 was taken by the firm, to be delivered and surrendered up when the timber culture claim should be deeded to it, and in explanation of the entry in the books in reference thereto, the witness says, in answer to cross interrogatories 12 and 14: “The memorandum of Adams’ property, and the value thereof, made as a basis for the formation of the partnership, was used to form the basis of the entries on the books, and these prices are correct as agreed upon, with the exception of the valuation of the real estate and improvements on the timber culture, which are erroneous as they appear on‘the books and as testified by me in answer to interrogatory No. 17 of the direct examination; the amount charged to bills receivable for I. H. Adams’ note, dated November 18, 1885, $1,800, being in fact chargeable to real estate. The reason of this entry being made in this manner was that the defendant had not made final proof on the timber culture claim, and it was feared that the knowledge of the actual transaction between defendant and the firm of Steel & Adams, if entry was correctly made, might prevent the making of such final proof. * * * The amount agreed upon which I. H. Adams was to receive for the one hundred and sixty acres of land owned by him in November, 1885, and his interest in the timber culture claim and improvements thereon, all subsequent improvements necessary to enable him to
The testimony of the Steels in reference to this matter is contradicted by Adams, who testifies that he was to deed the pre-emption claim to the partnership for $2,000, but nothing was said about purchasing the timber claim, or paying for the trees or clearing thereon, although both places were to be improved and worked together; that
It is argued, however, that such a contract is void as against public policy. In support of this position, reliance is had upon a line of authorities holding that the courts will not enforce specific performance of a contract made by a homesteader to convey his claim after final proof: Clark v. Bayley, 5 Or. 343 ; Brake v. Ballou, 19 Kan. 397; Warren v. Van Brunt, 86 U. S. (19 Wall.) 646 ; Brewster v. Madden, 15 Kan. 249 ; Oaks v. Heaton, 44 Iowa, 116; Anderson v. Carkins, 135 U. S. 483 (10 Sup. Ct. 905). The homestead law requires the applicant to make an affidavit at the time of his entry that it ‘ ‘ is made for the purpose of actual settlement and cultivation, and not either directly or indirectly for the use or benefit of any other person” (Rev. Stat. U. S. § 2290); and, on making his final proof, “that no part of such
So far as the Weaver place is concerned, the evidence shows that it was deeded to the defendant’s wife by Weaver some time after the formation of the partnership of Steel & Adams, and there is no testimony, except mere inferences, on behalf of the plaintiff, that it was purchased or paid for with the partnership funds. On the other hand, the defendant, his wife, and their son all testify that it was purchased and paid for by Mrs. Adams with her own money, and this evidence is substantially uncontradicted. Moreover, Mrs. Adams is not a party to this suit, and therefore no decree could be made, in any event, which would be binding upon her. The decree of the court below will be modified in accordance with these views. Modified.