Spencer v. Wolff

CO SHOW, J. The demurrer to the complaint was properly overruled. It does not appear from the face of the complaint when the defendant collected the money, nor that the partnership alleged in the complaint and admitted by the demurrer was dissolved and its affairs settled: McKinnis v. Dodge et al., 103 Or. 9, 15 (203 Pac. 876); McDonald v. Holmes, 22 Or. 216 (29 Pac. 735). The complaint states a good cause of suit in equity: Li Sai Cheuk v. Lee Lung, 79 Or. 563 (146 Pac. 94, 156 Pac. 254). The affirmative matter alleged in the answer and admitted by the plaintiff does not constitute a complete defense to plaintiff’s cause of suit. *241 There are other issues of fact joined by the pleadings. Defendant was not, therefore, entitled to a decree on the pleadings: Owen et al. v. Leber et al., 112 Or. 136, 141 (228 Pac. 927). The allegations that the relation of the parties was a cotenancy may well be considered an affirmative denial of the averment of partnership. It tenders no issue different from the denial of the partnership: Welch v. Johnson, 93 Or. 591, 597 (183 Pac. 776, 184 Pac. 280); Kabat v. Moore, 48 Or. 191, 195 (85 Pac. 506). This particular question seems not to have been submitted to the Circuit Court, and requires no further extended discussion. However, the allegation in the affirmative answer does not aver they did not own and operate the boat as partners but merely declares they built it as tenants in common. The admission in the reply is not broader than the allegation admitted, and is not an admission that they owned and operated the boat otherwise than as partners. The boat may have been built by them as tenants in common, and also owned and operated as a partnership. Both allegations could be true. The court found as a fact: “On or about the 3rd day of May, 1909, Plaintiff and Defendant agreed to and did engage in a common venture or enterprise, partaking of all elements of a partnership, for the purpose of constructing, owning, operating and navigating a motor boat known as “Wolff II,” and the Plaintiff advanced and contributed to said partnership the sum of $1500.00, and Defendant contributed thereto his time, labor and services and certain sums in cash.” The presumption is that there was evidence to support this finding. The evidence taken during the trial is not here so that we are unable to try the *242 case anew. The pleadings are sufficient to support the decree: Wood v. School District No. 13 et al., 107 Or. 280 (214 Pac. 589). The finding is equivalent to a finding that the parties were partners. “Things equal to the same thing are equal to each other.” A relation between two persons engaged in business together “partaking of all elements of a partnership” is a partnership. Persons associated jointly in an enterprise when held not to be partners were so held because their association together lacked one or more elements necessary to a partnership. The Circuit Court had jurisdiction of the cause regardless of the question of whether or not it is a suit in equity or an action at law. No proceeding in the Circuit Court should be dismissed because addressed to the wrong side of the court. The cause should be disposed of according to its merits in the proper forum notwithstanding the litigants may have mistaken their appropriate remedy: Section 390, Or. L. Affirmed. The decree is affirmed. Rand, J., took no part in this case.