Stoop v. United States National Bank

COSHOW, J. The ruling of the court striking from the files the amended complaint must be upheld. The original complaint alleged as a considera *651 tion for the contract upon which it based its complaint to be the agreement upon the part of the defendant and his associates to jointly defend an action brought by Walch against the plaintiff, his associates and the defendants in this suit, for damages alleged to have been sustained in the sale of the Schwebke land. One of the issues joined was the validity of that consideration. The new matter inserted in the amended complaint and above set out clearly shows that it expresses a different consideration, substantially changing the issue which would require different testimony upon the part of the defendant to meet: § 102, Or. L. The amended complaint was not offered until all evidence was taken. The defendants had no notice of the claim on the part of the plaintiff that the consideration in support of his alleged claim was the additional matter set out in the amended complaint. The issues here are joined by the original complaint, the answers, including the equitable defense, and the reply. It is not seriously disputed that the arrangement between plaintiff’s firm, C. J. Black & Company, and the defendants constituted a joint adventure or partnership. That is clearly shown by the agreement set out as exhibit “A” in plaintiff’s complaint and herein above set out in full. That also appears from these allegations in the original complaint: “ * * the said deal and the ultimate sale of the' premises so conveyed by said Walch, and at said time all of said parties, i. e., the said defendant bank and the said Scroggin as one party, the said C. J. Black & Company as another party and the said Eider as the third party, agreed that in consideration of the working out of said transaction, advancing said moneys and effecting a sale of the two tracts of land received from said Walch, they, the said parties, would share on the basis of one-third to each, the *652 proceeds from the sale of said two tracts so conveyed by said Walch * * ” “ * * and the balance of $416.00 was deposited in said bank to the credit of said C. J. Black & Company, subject to division between the three parties above named at such time as the remaining tract of land so received from said Walch would be disposed of; all pursuant to the agreement hereinbefore set forth.” It necessarily follows that when the parties to this joint adventure or partnership were jointly sued by Walch to whom it had sold the Schwebke land, it became the duty of the plaintiff and his associates to defend against the complaint of Walch as much as that duty devolved upon the defendants. The allegation of the original complaint stating the consideration for the contract which was the basis of the Walch complaint is to the effect that “ * * it was agreed by and between said parties that they would jointly defend said action and would combine in said defense and would in said matter work to the mutual benefit of each other, and that in consideration of said arrangement and in consideration of all the matters hereinbefore alleged, the said defendants did promise and agree that if the said Black and the said Stoop would work to that end, the defendants would, upon the culmination of said litigation, pay to the said Stoop as assignee of all the rights and claims of the said Eider, the said Black and the said C. J'. Black and Company in said matter, the sum of $1614.00.” It is further alleged that the parties did proceed as stated and the Walch action resulted favorably to the defendants. We are of the opinion that this allegation is insufficient to support plaintiff’s claim. It did not require anything of the plaintiff and his associates other than what was their duty to do for *653 their own protection: Hoskins v. Powder Land & Irr. Co., 90 Or. 217, 222, 223 (176 Pac. 124); Jeffries v. Pankow, 112 Or. 439, 460 (223 Pac. 745, 229 Pac. 903); Bagley v. Bagley, 110 Or. 368, 373 (222 Pac. 722); Carico v. Crystal District Improvement Co., ante, p. 629 (250 Pac. 745). In the answer of the defendants it is alleged that the plaintiff and his associates received certain profits from the transaction for which they had not accounted to the defendants, and a prayer for an accounting. Defendants, bank and Scroggin have not appealed. The Circuit Court’s ruling denying said defendants relief is therefore not here. Other arguments are advanced with much force and learning, but we do not deem them important. This case hinges upon the alleged oral contract whereby the defendant is alleged to have agreed to pay to plaintiff $1,614. This sum was reduced to $1,479, the amount demanded in the complaint, by some matters happening after the alleged agreement was made. In our opinion the consideration stated in the complaint of the alleged contract sued upon is insufficient to support a contract. The decree is affirmed. Appirmed. Band, J., absent.