140 P. 751 | Or. | 1914
delivered the opinion of the court.
“The principal question presented is whether the defendant P. Basche can be sued jointly with the other defendants, the solution of which depends upon whether his undertaking is original or collateral. If his contract is collateral, and one of guaranty only, his liability and that of his principals is several, and cannot be enforced by a joint action.”
Further in the opinion, in adverting to the limiting word so used, it is observed:
“When the undertaking of the surety is not for a direct performance by himself, but only that his principal shall perform, and that he will be bound in case of default, his undertaking is not original, but collateral, and therefore his liability depends upon the terms of his contract, and not upon the character in which he may execute it. Now* in this case the lease was executed by all the parties, at the same time, upon the same consideration, and for the same purpose, and the undertaking of the appellant is not made conditional or dependent upon the default of the other defendants, but is an original, unconditional undertaking for a direct performance on his part. It is plain, therefore, within the rule stated, that his contract is not one of guaranty, or an agreement to answer for the debt, default, or miscarriage of another, but that of a joint obligation as to the plaintiff and, as a consequence, may be declared upon as such.”
An examination of the writing to which Rometsch subscribed his name, a copy of which is hereinbefore set forth, will show that it is a collateral engagement to answer for the default of the principals, Eppensteiii and Clark, upon their failure faithfully to perform the terms of the agreement. If the sufficiency of the complaint herein had been properly challenged on the ground suggested, the action as instituted could
A defect as to parties plaintiff or defendant, as specified in Section 68, subdivision 4, L. 0. L., means that the presence of other parties is necessary to a complete determination of the cause. A demurrer interposed on that ground must show that the parties are too few and name those who should be brought in. The clause of the statute last referred to relates to a nonjoinder and not a misjoinder: Cohen v. Ottenheimer, 13 Or. 220 (10 Pac. 20); Tieman v. Sachs, 52 Or. 560 (98 Pac. 163); Powell v. Dayton etc. R. R. Co., 13 Or. 446 (11 Pac. 222); State ex rel. v. Metschan, 32 Or. 372 (46 Pac. 791, 53 Pac. 1071, 41 L. R. A. 692). Unless the objection on the ground of a misjoinder is either taken by a demurrer or answer in the court below, the defect is waived: Osborn v. Logus, 28 Or. 302 (37 Pac. 456, 38 Pac. 190, 42 Pac. 997); Bohn v. Wilson, 53 Or. 490 (101 Pac. 202); In re Young’s Estate, 63 Or. 120 (126 Pac. 992).
As the name of Rometsch appeared on the face of the complaint, and by reason thereof a demurrer would not lie, in consequence of there being too many par
Simon "Wolf, as a witness for plaintiffs, testified that he was present when the lease was executed, and, after detailing the conversation relating to the consummation of the contract, he in answer to the inquiry, “Now, when was that ‘I’ written over the word ‘we’?” replied, “That was changed there when Mr. Rometsch put his name at the bottom of this agreement.”
The finding of the court is in accordance with the testimony last given in respect to this branch of the case, and, as such conclusions of fact in the trial of an action at law without a jury is predicated upon proper evidence, it is conclusive of the matter: Williams v. Gallick, 11 Or. 337 (3 Pac. 469); Liebe v. Nicolai, 30 Or. 364 (48 Pac. 172); Gorman v. McGowan, 44 Or. 597 (76 Pac. 769), and note. Other findings of fact upon subordinate issues are also supported by testimony, reasonable inferences, and presumptions, thereby rendering such conclusions likewise controlling.
“This covenant, whether expressed or implied, means that the tenant shall not be evicted or disturbed by the lessor, or by persons deriving title from him, or by virtue of a title paramount to his, and implies no warranty against the acts of strangers.”
The evidence in the case at bar does not show that plaintiffs leased the other rooms in their building for illegal purposes, or that any business involving moral
Such being the case, the conclusion reached by the trial court, and the judgment based thereon should be affirmed; and it is so ordered. Affirmed.