157 P. 157 | Or. | 1916
delivered the opinion of the court.
1, 2. It is contended here that the allegations of the complaint are not sufficient to show a partnership. A general demurrer seems to have been filed against the complaint, but without the same having been argued to the court the defendant answered, so that the case
“Objections to a complaint which should be pointed out by special demurrer, such as uncertainty or ambiguity, are insufficient, unless so specified, to defeat a verdict against the defendant, nor can they, if overruled after having been so specified, be considered for the purpose of sustaining a judgment in his favor that was erroneously rendered after a trial upon the merits. It is only when there is in the complaint an entire absence of averment of fact essential to a recovery, so that no evidence of that fact could be received at the trial, that a judgment in favor of the plaintiff cannot be sustained; but, if the objection be merely that such fact is defectively alleged, evidence received under such averment, if sufficient, will sustain the judgment. While the complaint in the present case is not entirely free from criticism, and might have been made more certain and precise in some of its averments, yet we think that it contains a sufficient statement of facts to justify the court in receiving evidence thereof, and, if sufficient to sustain the averments, to render a judgment as asked by the plaintiff.”
This excerpt aptly states the rule of code pleading on this subject, and we adopt the language as our own and hold the complaint sufficient at this stage of the litigation.
3. We pass to a consideration of whether there was, in fact, a partnership, and, if so, how the realty in question is affected thereby. It is admitted that there were no written partnership articles, and that the whole transaction between the brothers rests in parol. As deplorably too often the case among kinsmen, their relations in monetary affairs extended over a number of years without either party keeping any books or memoranda in writing, so that it is extremely diffi •
4. Looking to the origin of the title to the realty, we find it conceded that, in the first place, the brothers owned jointly the principal part of the same. ít is charged that the conveyance was made by the plaintiff to the defendant “under and by virtue of an oral agreement then and there had between them that the defendant should hold the title to said premises in trust for the plaintiff and should reconvey the same to the latter upon payment.” The denial of this allegation already quoted is what is phrased a “literal denial.” It would have been permissible under Section 73, L. O. L., to have made a general traverse of the allegation, but the defendant has undertaken to specify what he disputes, and so brings himself under the rule laid down in Moser v. Jenkins, 5 Or. 447, to the effect that no issue can be raised by conjunctive and literal denials. The same principle is declared in McCormick Machine Co. v. Hovey, 36 Or. 259 (59 Pac. 189). At the outset, therefore, on this branch of the case it must be said as a matter of pleading that the plaintiff was the equitable owner of one half of the real property at the beginning of the venture.
5. It must be noted also that the issue is solely between the plaintiff and the defendant. The interests or claims of other parties are not directly involved. No one but the two brothers urges any lien or charge upon the property in this suit. It was permissible
The contention of the defendant is that he borrowed the money of his brother and has repaid it; but he is utterly without data showing the time or amount of the repayment. He contends, also, that the plaintiff was there at his own pleasure as a member of the family, working when he wished, and idling as he would. The testimony impresses us, however, with the belief, as it did the Circuit Court, that the plaintiff not only advanced the money as a business enterprise in aid of the concern, but that his labor was effectual in the interest of the partnership.
6. In the leading case of Arnold v. Wainwright, 6 Minn. 358 (Gil. 241) (80 Am. Dec. 448), the court says:
“Whether land is to be deemed part of the partnership stock depends upon the agreement of the partners, which agreement may be either expressed or implied. After a very careful examination of the authorities, and the statutes of this state concerning trusts and fraudulent conveyances, we are of the opinion that lands may be converted into partnership stock by parol agreement of the partners, or- by such facts*376 and circumstances attending its acquisition or use as will raise an implication that the partners so intended. The legal estate will be controlled by the terms of the conveyance, but equity will subject the lands to the same liabilities imposed upon the other partnership estate, and restrict the partners to the same extent in their disposition of them as obtains in regard to the personalty.”
This decision was founded upon a statute much like our Section 804, L. O. L., that:
“No estate or interest in real property, other than a lease for a term not exceeding one year, nor any trust or power concerning such property, can be created, transferred, or declared otherwise than by operation of law, or by a conveyance or other instrument in writing, subscribed by the party creating, transferring, or declaring the same, or by his lawful agent, under written authority, and executed with such formalities as are required by law.”
The substance of the precedents on this question, treating of a case like the present, is that under such . circumstances the trust is declared by operation of law in order to overcome the inequitable conduct of a person who takes the money of his copartner under an oral contract of partnership, lets him into possession of the realty, accepts his labors for a long period of time, and finally renounces the relationship on the ground that there is no writing between them declaring the contract. A detailed analysis of the evidence would not serve any good purpose in declaring a principle of law. It is sufficient to state generally that we rely upon a careful reading of the evidence aided by the conclusion of a trial judge. In McDermot v. Lawrence, 7 Serg. & R. (Pa.) 438 (10 Am. Dec. 468), speaking of land, it is said:
“Yet there is no doubt that by the agreement of the partners, it may be brought into the stock, and con*377 sidered as personal property, so far as concerns themselves, and their heirs and personal representatives.”
The court, however, construed a deed conveying to the partners, named as individuals, and not as partners, as between the surviving partners and a mortgagee of one of them without notice, to pass a tenancy in common, indicating by inference that as between themselves the partnership interest in the realty might be shown by parol. In Brooke v. Washington, 8 Gratt. (Va.) 248 (56 Am. Dec. 142), in order to charge a dormant partner for the unpaid portion of the purchase price of land conveyed to the active part-. ners, the plaintiff was permitted to show by parol that the land was considered partnership property by the members of the firm. If, therefore, in favor of a stranger this matter could be established without a writing, much more might it be established between the parties themselves who have acted on that basis for a long period of time. Other authorities applicable to the question are here set down: Brown v. Morrill, 45 Minn. 483 (48 N. W. 328); Riedeburg v. Schmitt, 71 Wis. 644 (38 N. W. 336); In re Farmer (Ex parte Griffin), 18 N. B. R. 207, Fed. Cas. No. 4650; Duryea v. Burt, 28 Cal. 569; Wiegand v. Copeland (C. C.), 14 Fed. 118; Sigourney v. Munn, 7 Conn. 11; Roberts v. McCarty, 9 Ind. 16 (68 Am. Dec. 604); Marsh v. Davis, 33 Kan. 326 (6 Pac. 612); Tenney v. Simpson, 37 Kan. 353 (15 Pac. 187); Edwards v. Brinkerhoff, 85 Kan. 67 (116 Pac. 222). Cases involving the sale of land by one party to the other where possession relied upon as part performance to take the transaction out of the statute is not adverse, but, in common with that of the seller, are not in point here. Neither does the present contention trench upon the rights of lien creditors of the holder of the legal
The decree of the Circuit Court is affirmed and the cause- is remanded for further proceedings in winding up the affairs of the partnership. Affirmed.