113 P. 22 | Or. | 1911
delivered the opinion of the court.
At the trial there were received in evidence letterheads which had printed thereon: “Young & Morback, Lumber Co.,” etc., below, which was written what purported to be a bill of lumber sold. J. C. Smock, who had sold on credit merchandise to be used at the mill and charged the goods to the account of Young & Morback, was permitted, as plaintiff’s witness, over objection and exception, to answer questions as follows:
“Q. Did Mr. Young at any time look over any of the books ?
“A. He has, yes, sir.
“Q. Did he pay any of the bills or did he pay part of the bills?
“A. He has. * *
“Q. Did Mr. Young know you were crediting the account?
“A. He couldn’t help to know when he paid it directly on account, to be credited.”
J. H. Morback, as his wife’s witness, was asked: “Did Mr. Young use those bills or see them?” referring to the bills for lumber made out on the letterheads, and over objection and exception he was permitted to answer: “He has had them. I have rendered him bills just like those for collection.” In charging the jury the court, having declared that the contract for the sale of the mill did not
It is maintained by appellant’s counsel that the testimony hereinbefore quoted and the instruction given are erroneous in that the cause of action set forth in the complaint is based on the averment of an express partnership existing between the defendants, while the verdict and judgment are predicated upon facts, constituting an estoppel in pais, which were not pleaded. Plaintiff’s counsel, admitting the necessity of setting out in a pleading the facts forming such an estoppel if an opportunity to do so is afforded, maintain that their client believed a contract of partnership had been entered into by the defendants, but at the trial evidence of a holding out was received and the instruction given without having a fitting occasion to plead the facts constituting the estoppel by conduct, and such being the case, no error was committed as alleged.
It is quite probable that when this action was commenced plaintiff’s counsel reasonably supposed that the partnership relation of the defendants could be established by competent evidence, and that relying on such
In Davis’ Adm’r v. Thomas, 5 Leigh (Va.) 1, the maker of a promissory note, having knowledge that the holder was about to transfer it for a valuable consideration, promised to pay the debt to the proposed purchaser who was induced thereby to accept an assignment of the negotiable instrument. In an action on the note the maker, as a defense, pleaded the general issue. The assignee at the trial offered to prove that before the transfer he paid the amount of the note, relying upon the maker’s promise to repay the debt to him, and it was held that the evidence was admissible. In rendering that decision it is said:
“In this case, however, the defendant has pleaded nil debet. That being the general issue, it admitted of no reply, nor could the promise have been replied as an estoppel, since the plea was proper to enable the defendant to defend himself by proof of payment to the transferee himself after the transfer. Is the plaintiff then to be deprived of the benefit of the promise, because 'the defendant has pleaded one plea instead of another? Surely not. Although matter of estoppel is not taken notice of, unless relied on in pleading, where the matter to be concluded appears on the record, yet, where that matter is introduced in evidence upon the general issue, it is otherwise. The party cannot be called on to rely on his estoppel, until his adversary has attempted to use the improper defense. Whenever he does this, it may be arrested. Thus, in the present case, after evidence of the promise to pay, it was competent to the plaintiff, upon proof of a payment to the promisee, to move the court to instruct
In Hayes v. Va. Mut. Protection Ass’n, 76 Va. 225, 231, it was held that when an answer tendered a general issue only, the plaintiff, without replying, might introduce evidence of the defendant’s admissions or conduct, Mr. Justice Anderson saying:
“Matter of estoppel may be relied on in evidence by the plaintiff when the only defense is the general issue, for the reason that the estoppel in such case cannot be pleaded. But when the matter to which the estoppel applies is specially pleaded, then the estoppel must be specially replied or it cannot avail.”
So, too, in Carroll County v. Collier, 22 Grat. (Va.) 302, 309, in an action to recover the contract price of building a jail, a special plea was interposed that the building was not completed in time, and that the material employed was so defective and the labor performed so faulty that the structure could not be used for the purposes for which it was designed. Issue on this plea was joined, and at the trial the defendant, having produced witnesses to substantiate the defense, the plaintiff objected to their testimony, and offered in evidence an order of the county court showing the appointment of commissioners to examine the building, their favorable report that it had been constructed according to contract, and the acceptance of the jail, and it was held that the plaintiff, having taken issue upon the plea, the order of the county court could not operate as an estoppel when offered in evidence. In deciding that case, Mr. Justice Staples says:
“Had the defendant pleaded the general issue only, and under that issue offered the evidence in question, it would have been competent for the plaintiff to rely upon the estoppel in evidence also. And this upon the well-settled
We think the better rule is that if, before an ultimate pleading is filed by a party, he knows that evidence must be offered to prove the conduct of an adverse party as a bar to the latter’s assertion of a fact essential to the maintenance of a suit or action or requisite to a defense, the opportunity has arisen to plead the conduct relied upon as a bar and a failure to set forth the facts constituting the estoppel in pais will prevent the party upon whom the burden is cast from introducing evidence to substantiate the plea. Any other rule would necessitate the pleading of an equitable estoppel at any time during the trial of a cause when a resort to evidence of the acts of an adverse party became essential to establish the theory of the narty invoking the impediment. Opportunity to plead cannot mean an exercise of a court’s discretion in respect to allowing an amendment of a pleading, for if such were the case the rule would be to plead an estoppel in pais if permission to do so could be secured. A party is not bound to plead an equitable estoppel where he is without knowledge that his cause of suit or action or a successful defense must ultimately rest upon evidence of conduct constituting the plea: Donnelly v. San Francisco Bridge Co., 117 Cal. 417, 421 (49 Pac. 559). In deciding that case Mr. Justice Henshaw, referring to the facts involved and applying the law thereto, says:
“There is shown in this case an existing agency, a secret termination of it under circumstances designed to transform the agent into the principal, and this, without any knowledge or means of knowledge of the changed
Where a party has no opportunity to plead an estoppel in pais he may introduce in support thereof evidence of the conduct or admissions of the adverse party upon which he is compelled to rely without pleading such facts: Remillard v. Prescott, 8 Or. 37; Bruce v. Phoenix Ins. Co., 24 Or. 486 (34 Pac. 16). The answer did not suggest the necessity of relying upon a statement of the facts constituting an equitable estoppel, and as plaintiff believed the existence of the partnership relation could be established by direct evidence, we do not think the opportunity to plead the conduct arose. Such being.the case, no error was committed in the particulars alleged.
It will be kept in mind that the contract entered into by the defendants provided that from a sale of the output of the mill by Young he was to pay all the expenses incurred in manufacturing lumber, and from this stipulation it may fairly be implied that cooking meals for the laborers was an expense pertaining to the successful operation of the mill. This clause of the agreement when read in connection with the testimony last above quoted is sufficient, in our opinion, to establish an inference of plaintiff’s belief in respect to her husband’s authority as a partner of Young to employ her and of her reliance upon such credence while performing the service, for she had testified that though she had never seen the contract she had talked with her husband about it, and knew he had agreed to purchase an interest in the mill. We think no error was committed in refusing to grant the nonsuit.
Believing that plaintiff is entitled to the judgment secured, it is affirmed. Affirmed.