Wallace v. Baisley

• Decision Date: 21 June 1892
• Citation: 30 P. 432,22 Or. 572
• Parties: WALLACE v. BAISLEY.
• Court: Oregon Supreme Court

30 P. 432

22 Or. 572

WALLACE v. BAISLEY.

Supreme Court of Oregon

June 21, 1892

Appeal from circuit court, Baker county; MORTON D. CLIFFORD, Judge.

Action by L.W. Wallace, executor of I.R. Dawson, deceased substituted as plaintiff upon the death of said decedent against S.B. Baisley and another. From a judgment for plaintiff, Baisley appeals. Affirmed.

The other facts fully appear in the following statement by STRAHAN, C.J.:

This action was originally commenced in the name of I.R. Dawson as plaintiff, but while it was pending the plaintiff died, and the present plaintiff was substituted, having succeeded to Dawson's interest in the action. The complaint charges that at all the times therein alleged the defendants E. Silver and S.B. Baisley were partners under the firm name of E. Silver & Co. The complaint then charges that between the 1st day of April and the 1st day of November, 1890, I. Lang E. Lang, L. Lang, and _____ Lang, who were then, and now are partners under the firm name of Lang & Co., sold and delivered to the defendants, at their special instance and request, goods, wares, and merchandise of the reasonable value in the aggregate of $3,085.12. This was followed by other necessary allegations, and then various payments were alleged. The complaint contains several other counts, but each was, in substance, of the same tenor, varying as to time and amounts. The defendant Baisley answered separately, but the only issue tendered by him was a denial that he and Silver were partners at the times charged in complaint, or at any time. These denials were repeated as to each count. A jury was called, and the plaintiff, having introduced his evidence, rested his case. The bill of exceptions recites that the defendant S.B. Baisley was called as a witness to prove certain facts tending to show that a partnership did not exist between the defendants. This was objected to by the plaintiff for the reason that the answer tendered no material issue, which objection was sustained by the court, to which an exception was taken. The defendant Baisley then asked for leave to amend his answer so as to deny all the material allegations of the complaint, which the court refused; but no exception was taken to this ruling of the court. Thereupon, under instructions by the court, the jury returned a verdict for the plaintiff for $2,011.01, upon which judgment was duly entered, from which this appeal was taken.

G.O. Holman, L.M. Robinson, and J.L. Rand, for appellant.

W.F. Butcher, for respondent.

STRAHAN C.J., (after stating the facts.)

The exception to the court's ruling excluding Baisley's evidence in...