Sayles v. Daniels Sales Agency, 196 P. 465

Sayles v. Daniels Sales Agency

196 P. 465 | Or. | 1921

McBRIDE, J.

The presiding judge who tried this case in the court below characterized the pleadings, both of plaintiff and defendant, as being “bum,” and while that term is not defined in Bouvier or any standard work on pleading, it is sufficiently known colloquially to enable us to say that the designation was not wide of the mark.

1. The first attempted cause of action pleads the mere legal conclusion that “defendant was indebted to plaintiff” for goods, wares, and merchandise sold and delivered to defendant at its special instance and *41request. It does not show who furnished the goods, or what their value was, or that defendant promised to pay for them, and we are not able to stretch the mantle of charity sufficiently to make it cover these defects. In support of the sufficiency of the allegations, counsel for plaintiff cites Nicolai v. Krimbel, 29 Or. 76 (43 Pac. 865); but in that case there was an allegation that plaintiff sold and delivered the goods to defendant, while here we are left in the dark as to who sold and delivered the merchandise. There is no cause of action stated, and this item of $6.45 must be eliminated.

2-4. As to the second and third causes of action, we are of the opinion that while indefinite in statement they are sufficient. If the defendant wished a further statement, its remedy was by a motion to make more definite and certain. They are perhaps quite as definite as the answer, wherein the defendant after denying its own existence and denying that any moneys were advanced by plaintiff at its request, that it entered into a contract with plaintiff to pay a commission on the sale of automobiles and trucks, or that plaintiff sold an automobile or truck, in the next breath admits that plaintiff did assist defendant in selling automobiles and trucks, and pleads that it has paid plaintiff in full “for the services mentioned in plaintiff’s complaint.” The legal conclusion from the whole answer, taking it as we must, most strongly against the pleader, is that plaintiff rendered the services alleged in the complaint and has been paid therefor.

5, 6. An objection is made that a written contract between plaintiff and defendant showed that plaintiff was doing business under a fictitious or assumed name, and in the absence of a showing that such *42designation was registered with, the county clerk as required by Section 7777, Or. L. (Olson’s Compilation), the plaintiff cannot recover. The contract was signed, “Burton P. Sayles, City Garage, Dallas, Oregon.” Appending the signer’s place of business and postoffice address to his signature did not constitute a fictitious or assumed name; and if it did, the objection could be raised only by plea’ in abatement, as that fact did not appear in the complaint, nor was it suggested in the answer: Benson v. Johnson, 85 Or. 677 (165 Pac. 1001, 167 Pac. 1014).

7, 8. It is also objected that the causes of action are improperly joined. This objection, even if well taken, would be unavailable here, as there was no demurrer on that ground, and it was therefore waived: Section 72, Or. L.; Corbett v. Wrenn, 25 Or. 305 (35 Pac. 658). The causes of action all arose out of contract and were therefore properly joined: Section 94, Or. L.; Bade v. Hibberd, 50 Or. 501 (93 Pac. 364).

9. Objection was made to the admission of certain testimony tending to show that the written agreement introduced was misdated. The plaintiff did not declare upon the written agreement, nor did the defendant’s answer allude to it. The plaintiff’s oral testimony tended to show that the sale of the automobile was made on December 28th or 29th; that it was made under practically the same agreement as that shown .in the writing; and that the original draft of the agreement was drawn up by plaintiff’s wife on December 29th, and was intended to take effect as of that date, but was taken to Portland by defendant’s president to be copied, and the date of January 1, 1919, the actual date of the signing, was there inserted. The writer is of the opinion that the affirm*43ative answer of defendant amounts to an admission of the rendition of the services for which the plaintiff brings this action, and that the only defense is the value of the services and payment therefor. But, conceding the contrary to he true, the date is not material: Bliss on Code Pleading (3 ed.), § 283.

Taken as a whole, we find no error in the proceedings in the Circuit Court except the submission of the first alleged cause of action to the jury. In all other respects we are of the opinion that the verdict of the jury was in accordance with the weight of the evidence. The judgment will he modified, by deducting therefrom the sum of $6.45-, and a judgment will be entered in favor of plaintiff for the sum of $502.54 and his costs and' disbursements in the Circuit Court, there taxed at $33.85. As neither party has fully prevailed in its contentions here, neither will recover costs on this appeal. Modified.

Burnett, C. J., and Bean and Harris, JJ., concur.