Hofer v. Smith

• Decision Date: 11 February 1913
• Parties: HOFER v. SMITH et al.
• Court: Oregon Supreme Court

129 P. 761

65 Or. 145

HOFER v. SMITH et al.

Supreme Court of Oregon

February 11, 1913

Appeal from Circuit Court, Marion County; Percy R. Kelly, Judge.

Action by E. Hofer, doing business as the Capital Journal Publishing Company, against A.C. Smith and others, doing business as A.C. Smith & Co. From a judgment for plaintiff, defendants appeal. Affirmed.

This is an action to recover money. The cause was tried before a jury, and a verdict rendered in favor of plaintiff for $100. From a judgment thereon, defendants appeal.

The complaint is in the usual form in such cases, and alleges among other things, that plaintiff published advertising matter for defendants in a daily newspaper between December 31, 1908, and August 1, 1910; that during that time the defendants were copartners, doing a general real estate and brokerage business in the city of Salem, Or., under the firm name and style of A.C. Smith & Co. The answer contains a general denial of the facts alleged in the complaint. Upon the trial plaintiff introduced evidence tending to substantiate the averments of the complaint. At the close of plaintiff's case defendants' counsel moved for a nonsuit, on the ground that there was no competent evidence tending to show that they were partners during the time the services were rendered.

Wm. P. Lord, of Salem, for appellants.

John D Turner, of Salem, for respondent.

BEAN J. (after stating the facts as above).

In order to show that the defendants were copartners at the time the advertising was done, plaintiff offered in evidence a complaint filed in an action in the circuit court of the state of Oregon, for Marion county, wherein A.C. Smith, W.A Rutherford, and J.A. Simpson, partners doing business under the firm name and style of A.C. Smith & Co., were plaintiffs and one Rineman was defendant. It was alleged therein that during the time mentioned "plaintiffs were and now are conducting a general real estate and brokerage business in the city of Salem, county and state aforesaid, under the firm name and style of A.C. Smith & Co., and duly licensed as such under the laws of said city." The action was brought for the purpose of collecting a commission for the sale of real estate, pursuant to an agreement made in May, 1908. The complaint was verified on the 21st day of February, 1911, by defendant J.A. Simpson. This proof was admitted over the objection and exception of counsel for defendants. On behalf of defendants Simpson and Rutherford, it is urged in support of the motion for a nonsuit that the evidence does not tend to show that defendants were copartners at the time the services were rendered, for which compensation is claimed in this action. It appears that the advertising was done by plaintiff between December 31, 1908, and August 1, 1910. The only question for the determination of the court is whether or not there was any evidence showing that the partnership existed between defendants sufficient to be submitted to the jury.

To determine this we should consider all the evidence in the case, for the reason that it is the rule in this state that although plaintiff at the time of resting may have failed to offer proof sufficient to entitle the cause to be submitted to the jury, a ruling denying such motion will not be disturbed, if the omission is supplied by the subsequent introduction of evidence. Trickey v. Clark, 50...