Jones v. Skiles

167 P. 505 | Or. | 1917

Mr. Justice Benson

delivered the opinion of the court.

1, 2. The foregoing statement does not include all the allegations found in the complaint, but enough has been set out to show that plaintiff’s liability upon the promissory notes sued upon in the actions at law is so inextricably involved with the partnership transactions that assuming these allegations to be true, as we must upon demurrer, nothing short of an accounting of such partnership business could furnish the data necessary to justly determine the issues of the actions at law. It is quite true as said by this court in Dose v. Beatie, 62 Or. 308, 316 (123 Pac. 383, 125 Pac. 277), that:

“When in a law action the defendant can legally set forth the facts constituting his entire defense, his answer is adequate, and there is no necessity for a resort to a suit in equity in the nature of a cross-bill.”

But along with this statement there runs another, equally important, which is well expressed in Tooze v. Heighton, 79 Or. 545, 554 (156 Pac. 245), as follows:

“If, however, the defense available at law is not as plain, adequate, complete, practical and efficient as a defense on the same facts in a court of equity, a cross-bill may be interposed. ”

The cross-bill in the present case alleges facts constituting a partnership, alleges fraud and conspiracy to wrong plaintiff, and alleges facts tending to show that the notes in question are a part of these involved transactions. We think, therefore, that the trial court erred in sustaining the demurrer. The decree is reversed and the cause remanded with directions to overrule the demurrer. Reversed and Remanded.

Mr. Chief Justice McBride, Mr. Justice Burnett and Mr. Justice Harris concur.