De Young v. Robertson

• Decision Date: 10 July 1930
• Citation: 133 Or. 240,289 P. 1051
• Parties: DE YOUNG ET AL. v. ROBERTSON.
• Court: Oregon Supreme Court

289 P. 1051

133 Or. 240

DE YOUNG ET AL. v. ROBERTSON.

Supreme Court of Oregon

July 10, 1930

Department 1.

Appeal from Circuit Court, Coos County; J. T. Brand, Judge.

Action by J. W. De Young and another, copartners, doing business under the firm name and style of De Young & Roald, against W G. Robertson. From a judgment in favor of plaintiffs defendant appeals.

Affirmed.

The complaint, filed by a firm of architects, alleges two causes of action. The first of these avers that the plaintiffs pursuant to the terms of a contract with the defendant prepared for him plans and specifications for two buildings, and that the stipulated value of the services was the sum of $3,000; the second states that the plaintiffs, at the request of the defendant, prepared a photograph of the reasonable value of $7.60. After alleging that neither of these two sums has been paid, the complaint demands judgment for $3,007.60. The defendant filed an answer denominated "answer in abatement," which alleged "that he at no time has, by and for himself, in any manner made any agreements or contracts, nor assumed any obligations, personally to and with the plaintiffs as alleged in the said plaintiffs' complaint." It continued that when the defendant negotiated with the plaintiffs for their services he was acting as the representative of a corporation entitled the Twin City Building Company, and that the latter, and not himself, is the party responsible for the payment of the services performed. The prayer which concludes the answer follows: "Wherefore, the defendant demands judgment against the plaintiffs; that their complaint, as to this defendant be in all things dismissed; that they take nothing thereby, and as to this defendant go hence without relief, and that defendant do have and recover of the plaintiffs, his costs and disbursements which he has been forced to expend in and about this cause." The reply denied the allegations of the aforementioned answer.

At the beginning of the trial defendant's counsel contended that the pleading filed by him was "a plea in abatement because it points out to the plaintiff a better writ." The court construed it as one that made "argumentative denials of the material allegations of the complaint," and as "an attempt to plead to the merits." The court ruled that the pleading was not a plea in abatement, was willing to regard it as one in bar and proceed to trial, or to permit the defendant to file an amended pleading. The defendant's counsel, after saving an exception, filed an amended pleading which admitted that the plaintiffs were architects, and denied all other allegations of the complaint. Further answering, the defendant alleged that whatever agreement the plaintiffs may have had for supplying their services was with the corporation entitled the Twin City Building Company, and that the defendant's participation in effecting it was as a representative of the latter company; he alleged that this fact was well known to the plaintiffs. The answer averred that the agreement between the company and the plaintiffs provided that payment for their services was contingent upon the success of the company in obtaining a building loan, and upon the erection of the two structures. Further, the answer averred that the plaintiffs, as a part of their services, agreed to aid the company in procuring the loan. The answer concluded with allegations that the plaintiffs failed to render assistance in obtaining the loan, that the buildings were not constructed, that the project was abandoned, and that nothing became due to the plaintiffs. The reply denied all this new matter. The trial resulted in findings favorable to the plaintiffs upon the first cause of action. From a judgment in their favor in the sum of $3,000, the defendant appealed.

R. M. Andrews, of Portland, for appellant.

B. G. Skulason, of Portland, for respondents.

ROSSMAN, J.

Only two of the numerous exceptions, enumerated in the bill of exceptions, are argued in the appellant's brief; hence we shall confine our attention to these two only. See rule 12 Rules of the Supreme Court, 123 Or. 685.

It is first contended that the pleading entitled an "answer in abatement" was in fact a plea of that type, and that the circuit court erred when it construed it otherwise. That pleading denied liability on the part of the defendant, and put in issue the merits of plaintiffs' claim. Had the circuit court sustained the so-called...