177 P. 958 | Or. | 1919
For convenience the plaintiff will be called Joe Wisdom, and his brother, member of the
At the hearing, without objection, there was received in evidence a certain agreement between Arnold & Beasley, party of the first part, and Tuttle & Wisdom, a partnership consisting of C. H. Tuttle and Charles Wisdom, party of the second part, providing in substance that Tuttle & Wisdom should get out the logs in question and deliver them at the mill of the defendants, Arnold & Beasley. One of the provisions of the contract was that the party of the first part, Arnold & Beasley, should not be in any manner liable for any labor liens.
The plaintiff gave evidence in support of his claim showing the amount of labor he had performed, the agreed daily compensation therefor; that the same had not been paid, and that he had given due notice of his lien in the manner prescribed by statute. Under the general issue over the objection of the plaintiff to the effect that the same was incompetent, irrelevant and immaterial and not admissible under the pleadings, the defendant firm endeavored to prove that Joe Wisdom succeeded to the interest of Tuttle in the firm of Tuttle & Wisdom, and undertook as a new partner in that firm to perform the written contract already mentioned. In allowing this proceeding we are of the opinion the Circuit Court was in error.
“We confess you did the work you mentioned, but we had a contract with Tuttle & Wisdom saving us harmless from all liens, and you contracted with them to assume their obligations in that respect, and hence you cannot claim a lien against us because you have agreed to save us harmless in that respect. ’ ’
The mere denials of plaintiff’s complaint give Mm no notice whatsoever that the defendants would undertake to prove such a case, or attempt to show that he had assumed the obligation of another. It is not necessary at this juncture to cite further authorities than Horn v. Davis, 70 Or. 498 (142 Pac. 544), where the subject of what may be proven under the general issue is ably discussed by Mr. Justice Ramsey.
Passing all tMs, however, we come to an analysis of the evidence on the subject. The testimony of the defendant Beasley is to the effect that after Tuttle had done but little work on the contract he left the neighborhood and was not thereafter known in the transaction, and that Charles Wisdom came to the witness and stated “he wanted a contract drawn up with him and Joe Wisdom, the same as the one they had, and said they would go ahead with the logging as partners.” The witness stated that no contract was drawn up but that he agreed to the arrangement verbally. On cross-examination, however, he said there were present when this agreement was made only himself, Charles Wisdom, and the defendant Arnold; that they had no other agreement than the one with Charles Wisdom, and that they never had any understanding with Joe Wisdom about it. Further it appears in evidence that after that time all the orders that came to the defendant firm
Jesse Williams, another witness for the defendants, testified that Joe Wisdom was running the donkey-engine used in the logging operations; that the witness himself was firing, and that on one occasion in a conversation with Joe Wisdom concerning his services, to use his own language:
“We talked about wages, something, but I don’t remember just now. There was something said about wages, and I * * He said after they got these logs in that we were hauling then, that they were figuring on paying their fireman $3 a day, and if I thought I could stand the job, I could get that wages.”
Witness further testified in answer to questions, as follows:
“Q. Now, he used the plural pronoun, ‘we’?
“A. Well, I don’t remember whether he did or not. I could not say for sure, but he was talking to me and to the best of my knowledge I think that is what he said, that they were figuring on paying me $3 a day.
“Q. What was the understanding there as to who was doing the logging business, as to who was doing the business, who was doing the logging?
“A. I supposed the Wisdom boys, I don’t know. * *
“Q. What part did he [Joseph Wisdom] take in regard to running the business there, controlling the business?
“A. Well, I don’t hardly know, He seemed to be running the donkey as far as I know, and helped in the woods.
“ Q. Do you know of your own knowledge what their arrangement was as to being partners ?
“A. No, sir.
“Q. Never heard that discussed between them?
“A. No, sir.”
Before the trial the defendants made an application for a continuance on account of the inability of the wife of defendant Beasley, and her mother, to attend as witnesses by reason of their sickness. In the affidavit it was stated that the two witnesses talked with Joe Wisdom in July, 1916, in which conversation he
“said to said Eva Beasley that the plaintiff and the said defendant, Charles Wisdom, were partners in the logging business described in plaintiff’s complaint,, as being the logging business of Charles Wisdom and C. H. Tuttle.”
To avoid a continuance the plaintiff admitted
“that Eva Beasley and Marcella Bodwell will, if permitted to testify to the statements made in defendant’s affidavit for continuance, testify as stated; but plaintiff does not admit the competency, materiality or truthfulness of said statements.”
This led to a denial of the motion for postponement of the trial, and at the hearing the affidavit for a continuance was read in evidence. The defendant, Charles Wisdom, testified denying expressly that he made to either Arnold or Beasley any such statement as they imputed to him. He said he had no authority from Joe Wisdom to make such a statement, and that the matter of partnership between him and his brother had never been broached. Joe Wisdom testified in a similar strain, saying he never at any time entered into a partnership with Charles Wisdom and never authorized his brother to make such a declaration to Arnold & Beasley.
The result is the decree of the Circuit Court is reversed, and one here entered foreclosing plaintiff’s lien upon the logs and lumber mentioned for the sum of $238 principal, 80 cents recording fee, $50 reasonable attorneys’ fee, and for the costs and disbursements of the suit. Whether the Circuit Court had jurisdiction of the firm of Tuttle & Wisdom does not appear from the abstract, hence on the record before us we can go no further than to decree a foreclosure of the lien against the logs and lumber, without personal judgment except for costs and disbursements against Beasley and the estate of Arnold, who the stipulation before us shows is dead, and his administrator substituted. Reversed.