196 P. 379 | Or. | 1921
We come now to the principal question raised in the appellant’s brief. The complaint alleged substantially that the contract was made between Feldschau and the county, and the bond given was to secure the faithful performance of the contract by Feldschau. It further averred .that in fact Feldschau and Erickson were partners and that the contract and bond were executed for the use and benefit of both of them. It also stated that at the request of Feldsschau and Erickson the relator furnished to Feldschau the feed and provisions mentioned in the complaint, and that they both agreed to pay for them.
The evidence indicated that Erickson, if he was a partner, came into the firm after the contract was entered into and while the work was in progress, thus bringing this case within the exception noted in School District v. Smith, 63 Or. 586 (127 Pac. 797, 43 L. R. A. (N. S.) 65). The limitation therein expressed, as to those cases where the partnership is formed after the bond is executed, while broad enough as applied to that case is too narrow to be laid down as universal, as shown by the cases cited in the note to Section 137, Brandt on Suretyship and Guaranty (3 ed.). In the case at bar, while it is
Modified.