153 P. 803 | Or. | 1915
delivered the opinion of the court.
“Wm. E. Brady, #94 Harlem Av. 20# G. sugar at 5c.; 5# Butter at 30c.; 8# O. sugar at 5c.,” etc.
The symbol is the accepted and business-like substitute for the word “pounds” when written in the above connection and following a numeral.
“No person or persons carrying on, conducting or transacting business as aforesaid, or having any interest therein, .shall, hereafter be entitled to maintain any suit or action in any of the courts of this state without alleging and proving that such person or persons have filed a certificate as provided for in Section 1, and fail*495 ure to file such certificate shall be prima facie evidence of fraud in securing credit.”
We do not think that it was the intention of the legislature to alter the rules of evidence to such an extent as to require a party to introduce evidence of a fact already admitted by his adversary. While admissions in the pleadings are generally spoken of as dispensing with evidence of the facts so admitted, they are really conclusive evidence of such facts: 1 R. C. L. 469. In Beamish v. Noon, 76 Or. 415 (149 Pac. 522), we held that the objection that the complaint failed to allege that the certificate required by the act had been filed was waived by a failure to demur or plead in abatement, and that decision is conclusive here.
Points 2, 3, 4, 6, 8 and 9 are already covered by our preceding discussion and need not be further considered.
“A. I stated — when you asked me, I said that all those interlineations and erasures had been made before the contract had been signed. That was true, with one exception. You will notice in the duplicate copy the word ‘prime’ shows. After it was written and signed Mr. Young objected to the word ‘prime.’ He said he wouldn’t specify or hold himself to any one particular quality, but he would deliver a merchantable hop, good average hop, and so, thinking Mr. Young couldn’t attempt to deliver anything but what was a merchantable hop — ■
*497 “By Mr. Carson: Just a minute—
“By Mr. McNary: Just tell what happened.
“A. So, at his suggestion and his desire I crossed out the word ‘prime’ on mine. This was after the contract had been signed.
“Q. Was that the only change?
“A. That was the only change; yes, sir.”
This testimony was technically sufficient to justify the admission of the document.
Tested by the views above expressed we are of opinion that there was a fair trial in the court below, that the instructions given fully and fairly stated the law, and that the record discloses no reversible error.
The judgment is affirmed.
Affirmed.