Clark v. Wick

• Decision Date: 13 March 1894
• Citation: 36 P. 165,25 Or. 446
• Parties: CLARK et al. v. WICK.
• Court: Oregon Supreme Court

36 P. 165

25 Or. 446

CLARK et al. v. WICK.

Supreme Court of Oregon

March 13, 1894

Appeal from circuit court, Linn county; George H. Burnett, Judge.

Action by Clark Bros. against Philip Wick. From a judgment for plaintiffs, defendant appeals. Affirmed.

Geo. E. Chamberlain, for appellant.

N.M Newport, for respondents.

BEAN J.

This is an action on an implied contract for board and feed furnished the defendant by plaintiffs, and on certain accounts for labor performed for defendant by one Cree and one Fitzwater, and by them sold and assigned to plaintiffs. In the title of the cause, plaintiffs are designated as "James E. Clark and Charles Clark, partners doing business under the firm name and style of Clark Brothers;" but there is no allegation in the body of the complaint of such partnership, or that the accounts sued on are partnership accounts. A demurrer to the complaint being overruled, defendant answered, denying specifically all the allegations of the complaint, and, upon the issue thus joined, a trial was had, resulting in a judgment in favor of plaintiffs, from which defendant prosecutes this appeal.

The first assignment of error is in the admission of evidence tending to show that plaintiffs furnished board for the defendant and feed for his stock, as alleged in the complaint, and that they purchased the Cree and Fitzwater accounts as partners under the firm name of Clark Bros. The objection to the admission of this testimony is based upon the fact that there is no allegation of partnership in the body of the complaint. Conceding that the words "partners doing business under the firm name and style of Clark Brothers" in the title of the cause are mere descriptio personarum, and not a sufficient allegation of partnership, we are still of the opinion that there was no fatal variance between the allegations and proof. The complaint alleges an implied promise in favor of plaintiffs jointly, arising on account of board and feed furnished defendant, and of certain accounts against him, purchased and owned by them, and the answer simply puts these allegations in issue. It is therefore immaterial in this case whether such cause of action accrued to them as joint owners or as partners. In either case they were the joint promisees, and the only parties having an interest in the cause of action and, had the plaintiff alleged a partnership, an issue upon that alone would be immaterial, and plaintiffs would have been entitled to judgment on the pleadings. Millerd v. Thorn, 56 N.Y. 402; Walgamood v Randolph, 22 Neb. 493, 35 N.W. 217. An allegation of partnership is only necessary when the cause of action depends on its existence. Abb.Tr.Ev. § 203; Loper v Welch, 3 Duer, 644. If the action is brought on an obligation made payable to a partnership in its firm name, it is, of course, necessary to...