161 P. 560 | Or. | 1916
The defendants demurred to the complaint filed by Malagamba and the Circuit Court ruled that the pleading did not contain facts sufficient to constitute a cause of suit; and, the plaintiff refusing to plead further, the court dismissed the suit. Malagamba appealed and upon his application we issued an order which, pending the appeal, and until a final hearing, stays the execution on the Irena C. McLean judgment and enjoins the sale of lot 5. The defendants contend that the complaint does not state facts sufficient to constitute a cause of suit and they therefore moved for a dissolution of the restraining order.
Motion Denied.
Submitted on briefs July 9, affirmed July 16, 1918.
On the Merits.
(173 Pac. 1177.)
In Banc.
This is a creditor’s suit. The substance of the complaint is to the effect that plaintiff and defendant Arch McLean were at one time partners in a shoe store; that in a suit for a dissolution of the partnership and an accounting, plaintiff obtained a decree, inter alia, for the recovery of certain sums of money; that while such suit was pending, the defendant Irena 0. McLean obtained a joint and several judgment against the partnership for a sum of money upon which there is now due $2,669, with interest; that defendant Arch McLean has practically no money or property whereby
For appellant there was a brief submitted over the name of Mr. J. J. Barrett.
For respondents there was a brief prepared and submitted over the name of Messrs. George G. & A. G. Fulton.
Does the complaint state a sufficient cause of suit as against the defendant Irena C. McLean? The allegations of fact upon which the right of setoff is' based, 'are found in paragraph 9 of the complaint, which reads thus:
*306 “That at some time in the past, the exact time of which is unknown to this plaintiff, the defendant Arch McLean, built, and caused to be built, upon defendant Irena C. McLean’s real property, to-wit: — upon Lot 5, Block 46, McClures Addition to Astoria, Clatsop County, Oregon, a two story house, at an expense of about $3,500.00, as plaintiff is informed, and that the value of defendant Irena C. McLean’s said real property was thereby enhanced in at least said amount, that defendant Irena C. McLean never repaid defendant Arch McLean for the sum, or sums of money so expended by him in building, or causing to be built said house and said improvements upon her said real property, . That defendant Irena C. McLean is now indebted to defendant Arch McLean in about the sum of $3,500.00 for such house so built, and such improvements so made by defendant Arch McLean upon her said real property, but that defendant Arch McLean on account of plaintiff’s said unsatisfied judgment and decree against him, refuses to enforce his claim for said amount against his said wife, defendant Irena C. McLean, all for the purpose of defrauding this plaintiff and to prevent him from collecting his said judgment and decree. That defendant Arch McLean’s said claim against his wife, Irena C. McLean, defendant herein, for such money so spent by him in building said house and making improvements upon defendant Irena C. McLean’s said real property, ever since has been and now is an existing and enforceable claim against defendant Irena C. McLean, but is not reachable by writ of execution upon plaintiff’s said judgment and decree against defendant Arch McLean.”
When these averments are stripped to the essentials, they amount to this: at some time in the past, defendant Arch McLean built a two-story house on his wife’s' lot, at an expense of about $3,500. Nothing is said of the financial condition of the husband at that time, nothing of any agreement between him and his wife' as to the motive of the action, nothing of any promise upon her part to reimburse him for his expenditure.