Spencer v. Wolff , 119 Or. 237 ( 1926 )

This suit was instituted to collect a sum of money alleged to have accrued to a partnership between the parties. The complaint alleges that the parties formed a copartnership for the purpose of owning, operating and navigating a motor-boat known as Wolff II; that subsequent to the formation of said partnership the motor-boat was insured and thereafter partially destroyed by fire; that the defendant collected a sum of money upon said policy of insurance; that the defendant has refused to account with plaintiff for his share of the money so collected; that defendant had also salvaged what was left of said motor-boat and refused to account to plaintiff for his share of money received for said salvage; that the defendant had also collected for the use and navigagation of said motor-boat certain sums of money, the amount of which was unknown to plaintiff, and that it was necessary for a discovery and accounting between the plaintiff and defendant. The plaintiff prays for such discovery and accounting and for judgment for his share in all money received from said partnership enterprise, for costs and disbursements and general relief. The complaint does not show when the money so collected by the defendant was received by him. This suit was instituted May 12, 1922. The defendant demurred to the complaint on three grounds. First, that the suit was not begun within six years after the collection of said money. Second, that the court was without jurisdiction. Third, that the complaint did not state sufficient facts. The demurrer was overruled and defendant filed his answer denying the partnership and his liability to the plaintiff and sets up as an affirmative defense that the plaintiff and defendant,

"as tenants in common, built a motor boat which was named ``Wolff II,' and the purpose of the parties was to race said boat particularly at the Astoria Regatta, and other racing events, * *; and Plaintiff was to inherit such glory as would be incident to the winning of the races; and Plaintiff was to receive for his sole use, such other emoluments which he could arrange for, other than the prizes obtained from winning races."

The affirmative answer further sets up that the plaintiff refused to insure his interest in said boat and that defendant insured the latter's interest only, and further states the amount of the salvage and pleads the statute of limitation. A reply was filed admitting the affirmative allegation in the answer to the effect that the plaintiff and defendant as tenants in common built said motor-boat and denies the other material allegations of the answer. The cause was tried upon the evidence adduced in open court, and a decree rendered in favor of the plaintiff for the sum of $671.41, one half of the amount received for the damage to said boat by fire, $25, one half of the amount salvaged and plaintiff's costs and disbursements. From this decree the defendant appeals. The evidence taken in the Circuit Court was not reduced to writing and it is not a part of the record. The only questions presented on this appeal are the sufficiency of the complaint and whether or not the admission by plaintiff of defendant's allegation that the plaintiff and defendant built said boat as tenants in common entitles defendant to a reversal of said decree.

AFFIRMED. REHEARING DENIED. MOTION TO RECALL MANDATE DENIED. 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 P. 876); McDonald v. Holmes, 22 Or. 216 (29 P. 735). The complaint states a good cause of suit in equity: Li Sai Cheuk v. Lee Lung, 79 Or. 563 (146 P. 94, 156 P. 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.

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 P. 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 P. 776, 184 P. 280); Kabat v. Moore, 48 Or. 191, 195 (85 P. 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 case anew. The pleadings are sufficient to support the decree:Wood v. School District No. 13 et al., 107 Or. 280 (214 P. 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.