Barr v. Woodbury

• Citation: 300 P. 497,136 Or. 647
• Parties: BARR ET AL. v. WOODBURY ET AL.
• Decision Date: 23 June 1931
• Court: Supreme Court of Oregon

300 P. 497

136 Or. 647

BARR ET AL. v. WOODBURY ET AL.

Supreme Court of Oregon

June 23, 1931

Department 2.

Appeal from Circuit Court, Multnomah County; Robert Tucker, Judge.

Action by Robert Barr and others against Ray Woodbury, R. L. Martin and N. Goldberg and R. Cohn, partners under the name of Oregon Junk & Hardware Company, and the Oregon Junk &amp Hardware Company. Judgment for plaintiffs against the first four named defendants, and such defendants appeal.

Affirmed.

C. M Hodges, of Portland (Hodges & Gay, of Portland, on the brief), for appellants.

Robert G. Smith, of Portland (V. A. C. Ahlf, of Portland, on the brief), for respondents.

CAMPBELL, J.

Plaintiffs' amended complaint alleges in effect that defendant Oregon Junk & Hardware Company was organized as a corporation June 16, 1928, and ever since has been such; that between November 16, 1927, and May 1, 1928, plaintiffs performed and furnished labor and services, and furnished materials for and at the request of the defendants Ray Woodbury, R. L. Martin, N Goldberg, and R. Cohn, in the transportation of certain logging machinery and equipment between certain points in Lewis county, state of Washington; that the reasonable value of said services and materials was $4,846 that an itemized statement of said claims was attached to the complaint and made a part thereof; that said N. Goldberg and R. Cohn, at the times alleged in the complaint prior to June 16, 1928 were partners doing business under the firm name of Oregon Junk & Hardware Company, and that on or about June 16, 1928, they organized the defendant corporation, Oregon Junk & Hardware Company, and transferred and assigned to the said corporation all the assets of their partnership; that, at the time of said transfer from the partnership to the corporation, the corporation knew of the indebtedness owed by the partnership to the plaintiffs, and, as a part of the consideration for the transfer, the corporation agreed with the partners to assume and pay all sums owed by the other defendants to the plaintiffs herein for the labor and services above specified.

The defendants Ray Woodbury and R. L. Martin answered the amended complaint, alleged their partnership, and alleged that plaintiffs Robert Barr and Edwin Ersted were copartners, and that plaintiffs Theo F. Wahl and R. W. Smith were copartners, and that said copartnerships entered into an agreement for the labor and services specified in plaintiffs' complaint, but denied all the other allegations.

For a further and separate answer and defense, they allege certain counterclaims and offsets to plaintiffs' demands. Defendants N. Goldberg and R. Cohn filed an answer alleging that they were partners and also the identical allegations as to all other matters, including the new matter, as the answer of defendants Woodbury and Martin.

The defendant Oregon Junk & Hardware Company filed a general denial. Replies were filed denying all the new matter in the answers. It appears that R. W. Pruitt was made a party plaintiff through mistake, and was later dismissed from the action.

The cause was tried to the court without a jury. Findings of fact and conclusions of law were made in favor of the plaintiffs and against defendants Woodbury, Martin, Goldberg, and Cohn, but in favor of defendant Oregon Junk & Hardware Company. Judgment was thereupon entered for plaintiffs and against defendants Woodbury, Martin, Goldberg, and Cohn, and dismissing the case as to defendant Oregon Junk & Hardware Company. Defendants Woodbury, Martin, Goldberg, and Cohn appeal.

It appears, when the evidence of plaintiff was all submitted, the court suggested certain amendments be made to the complaint. These amendments were objected to by the defendants, as shown by the bill of exceptions: "For the reason that the cause had been submitted and the plaintiffs had rested their case, and as the amendment changed the cause of action and changed the parties, plaintiffs from individuals to a corporation, and changed the defendant from individuals who had been brought into court as such by summons, to a corporation which had never been sued and brought into court by summons, which is a separate and distinct entity, such amendment was not allowable."

The bill of exceptions then proceeds:

"Acting as if the plaintiff had amended the complaint as suggested and allowed by the court, each of the defendants interposed the same demurrer to said amendment as they had previously interposed to the complaint before permission was given to amend."

"1. That it appears on the face of said amended complaint that there is a non-joinder of necessary parties, plaintiffs and defendants."

"2. That it appears from the face of said amended complaint that several causes of action had been improperly united."

"3. That it appears from the face of said complaint that it does not state facts sufficient to constitute a cause of action."

The bill of exceptions then sets up an analysis and a criticism...