94 P. 567 | Or. | 1908
Opinion by
It is not clear that, under the pleadings and evidence in this case, defendant can bar the prosecution of the action by a motion for a nonsuit based upon reasons which amount to an affirmative defense, but are not pleaded. Plaintiff has alleged a sale to defendant of an undivided interest in some timber for a definite sum. There is no suggestion in the complaint of a partnership relation, or that the property sold was partnership property. These averments are met by a general denial without any affirmative defense. When proof has been submitted of the sale as alleged, but connected with other proof that the property sold had been the property of a partnership which had existed between plaintiff and defendant, the objection is interposed by motion for a nonsuit that no cause of action is shown, because the transaction related to an unsettled partnership. Such objections are usually raised by demurrer or answer, and it would appear from the case of Wilson v. Wilson, 26 Or. 251 (38 Pac. 185), that such defense, when made, amounts to an equitable plea in abatement, and that the better reasoning and authority is in favor of the rule that will not permit a mere suggestion of an equitable defense to defeat the action at law, wherein such defense cannot be made available. We do not wish, however, to be understood as passing upon that question, as we are .of the opinion that the case, as made, is not within the general rule applicable' to partnership transactions, but is an individual transaction and within the exception to the-general'rule. *' ' ■ ' '
The 'evidence tends' tb show that early- hr the 'year 1903 plaintiff and defendant entered into a copartner
It follows that the judgment should be reversed and the cause remanded for further proceedings.
Reversed.