Friday v. Rowen

224 P. 632 | Or. | 1924

McBRIDE, C. J.

We see no error in the ruling of the court excluding the various writings offered by the defendant. They were not, any of them, inconsistent with a partnership between Rowen and the defendant. It would be entirely consistent with these papers that Rowen should have secured a contract for the mining of the ores and sale of them and that he had been taken in as a partner to assist in carrying out the contract. The evidence of the statements of Barton, which, so far as the bill of exceptions shows, were undenied, was admissible, both as admissions against interest tending to prove an actual partnership and as a holding out of a partnership, upon the strength of which the plaintiff performed the work and labor and furnished the material set forth in the complaint. It is clear that if Barton made these declarations and thereby induced plaintiff to believe them and perform the work and labor and furnish the material, he is estopped from denying that he is a partner. The law under such circumstances will conclusively assume that he is a partner.

This case differs from the cases cited by counsel wherein the fact that one person was assuming to act as a partner was denied by the other alleged partner before the cause of action arose under circumstances of such publicity as would reasonably have imparted notice to the person performing the work; which conditions are not in this case. So far as appears from the bill of exceptions Barton never denied before the work was performed that he was a partner; nor has he, so far as the bill of exceptions shows, denied it in this action except by way of answer to the complaint; nor is there anything in the testimony tending to bring home to plaintiff a knowledge of the newspaper publications referred to, and even if such testimony existed, it would have no weight as against the declarations made by Barton himself to plaintiff and others that he was actually a partner; for, as before stated, these facts might be true and still a partnership exist between Barton and Bowen.

The remarks of the judge quoted above simply indicate that in the course of the trial he had strayed somewhat in his ideas from a correct definition of what constituted a holding out of one person as a partner of another; in which remark we think he was wrong. But the remarks, if they had any influence with the jury, would rather tend in favor of the defendant and against the plaintiff. At the conclusion of the trial and when he came to charge the jury, the judge seemed to have gotten himself correctly oriented and laid down the law in exact conformity with the authorities.

The decree rendered in 1921 in a suit between Bowen and Barton and others, wherein it was found and decreed that Barton was not a partner of Bowen, was clearly inadmissible. Plaintiff was not a party to the proceedings, which were commenced long after plaintiff’s cause of action accrued, and the decree was valueless both as substantive evidence and as an estoppel.

The judgment is affirmed. Affirmed.

Bean, Brown and McCourt, JJ., concur.