Hofer v. Smith

Mr. Justice Bean

delivered the opinion of the court.

In order to show that the defendants were copartners at the time the advertising was done, plaintiff offered in evidence a complaint filed in an action in the Circuit Court of the State of Qregon, for Marion County, wherein A. C. Smith, W. A. Rutherford, and J. A. Simpson, partners doing business under the firm name and style of A. C. Smith & Co., were plaintiffs, and one Rineman was defendant. It was alleged therein that during the time mentioned “plaintiffs were and now are conducting a general real estate and brokerage business in the city of Salem, county and state aforesaid, under the firm name and style of A. C. Smith & Co., and duly licensed as such under the laws of said city. ’ ’ The action was brought for the purpose of collecting a commission for the sale of real estate, pursuant to an agreement made in May, 1908. The complaint was verified on the 21st day of February, 1911, by defendant J. A. Simpson. This proof was admitted over the objection and exception of counsel for defendants. On behalf of defendants Simpson and Rutherford, it is urged in support of the motion for a nonsuit that the evidence does hot tend to show that defendants were copartners at the time the services were rendered, for which compensation is claimed in this action. It appears that the advertising was done by plaintiff between December 31, 1908, and August 1, 1910. The only question for the determination of the court is whether or not there was any evidence show *148 ing that the partnership existed between defendants sufficient to be submitted to the jury.

1. To determine this we should consider all the evidence in the case, for the reason that it is the rule in this state that, although plaintiff at the time of resting may have failed to offer proof sufficiént to entitle the cause to be submitted to the jury, a ruling denying such motion will not be disturbed, if the omission is supplied by the subsequent introduction of evidence: Trickey v. Clark, 50 Or. 516, 519 ( 93 Pac. 457 ); Crosby v. Portland Ry. Co., 53 Or. 496 ( 100 Pac. 300 , 101 Pac. 204 ).

2. After the ruling on the motion for a nonsuit, defendants introduced evidence tending to controvert that upon the part of plaintiff, and explaining the dates of the copartnership of defendants as alleged in the complaint in the Eineman case, claiming that it might be an error. Defendants assert that, while they were engaged together in the real estate business prior to that time, they were not copartners until August 11, 1910, when a partnership agreement was executed. This court has nothing to do with the conflict in the evidence. That matter was settled by the verdict of the jury.

3. Admissions or declarations of a party contained in a pleading served by him on the adverse party in another case may be used in evidence by plaintiff, though not a party to the action in which the pleading was served, if it contains statements material to the issue on trial: General Electric Co. v. Jonathan Clark & Sons (C. C.), 108 Fed. 170 ; Every v. Rains, 84 Kan. 560 ( 115 Pac. 114 ); 16 Cyc. 969.

4. It appears that defendant Simpson verified the complaint offered in evidence, and defendant Kutherford knew of and acquiesced in bringing the action in the Rineman case. The defendants were represented *149 by well-known attorneys in that ease. The pleading contained a plain statement of a fact relied and acted upon by all of the defendants, and material to the issue in the case under consideration. It is true.that the defendants had the right to explain this statement, which they attempted to do, the issue in regard to the copartnership was plainly submitted to the jury by the trial court, and the jury found against the claim and explanation of defendants and in favor of plaintiff. The circumstances and the complaint offered in evidence certainly indicate that between May, 1908, and February 25, 1911, these defendants were copartners.

Under the provisions of Article VII, Section 3, of the Constitution, as amended November 8, 1910 (Laws 1911, p. 7), no fact tried by a jury shall be otherwise re-examined in any court of this state, unless the court can affirmatively say there is no evidence to support the verdict. This we cannot say in the case at bar. Other errors are assigned which, after a careful examination of the record, we do not think are prejudicial, or that they changed the result.

Finding no error in the record, the judgment of the lower court is affirmed. Affirmed.