Daily capital journal. (Salem, Oregon) 1903-1919, 1911-04-24


written, except with the consent of
the broker. The st. Paul Fire &
Marine Insurance Co. looked to its
agents for payment of premiums, and
the agents were obligated to make
such payments, whether or not the
premiums were collected. The pre-
miums earned on business noted in
the statments rendered to defendant
were, in fact, all paid by plaintiff to
the st. Paul Fire & Marine Insur-
ance Co. which company, by reason
thereof, asserts no claim against the
defendant.
At the conclusion of plaintiffs evil
dence defendant moved to strike out
all the testimony on the subject of
custom, and for judgment Of nom
suit, which motions were allowed by
the court, and exceptions taken by
plaintiff.
From judgment in favor of defen-
dant for costs, plaintiff appeals.
Bean, j.. From an examination of
the answer it appears defendant de-
MES the allegations of the complaint,
except as hereinafter expressly al
leged," thereafter alleging, as to
each cause of action, that all insur-
ance written by plaintiff in the st.
Paul Fire & Marine Insurance Co.
for defendant, or at his instance and
request, during June and July, 1907,
was written by plaintiff as president
of NJ. G. Harrison & Co., for and In
behalf Of said insurance company,
and all promises or obligations, If
any, to pay premiums, and all deal
ings were with the st. Paul Firt &
Marine Insurance Co. The transac-
tions set forth in the complaint, as
to defendants part therein, are not
denied, but are claimed to have been
had with another, and not with the
plaintiff.
For the purpose of qualifying the
denials and explaining the transac-
tions, we think 1t proper for defen-
dant to set forth in his answer the
dealings as he claims they were, and
that the motion to strike the first
three paragraphs of each of the first
further and separate answers was
properly denied.
AS to the paragraphs Of the an
swers, relating to the filing of libel
in the federal court, this action ap-
pears to have been dismissed for
want Of jurisdiction, and cannot pos
sibly have any effect upon this case.
The motion to strike, as to these par
agraphs, should therefore have been
allowed.
The second further and separate
answers to each Of the two causes Of
action are in the nature of pleas in
abatement and were waived by de-
fendant pleading to the merits. Raj
ferty v. Davis, 81 Or, n. A plea in
abatement cannot be Joined with a
plea in bar, and must be disposed of
before an answer to the merits can
be considered. La Grande v. Port
land Public Market, 113 Pac., %, and
cases there cited. Under the provi-
sions of Sec. 67O9, L. o. L., such
pleas should be disposed of before
trial of the case upon its merits.
The motion to strike was directed
at the whole of the further and sep
arate answers. We do not think that
the sufiiciency of these defenses
should be tested by such a motion
or that it should perform the Office
of demurrer. The Victorian, "a Or,
121. The denial of the motion as to
these parts of the answer was not
error Proper objection upon the
trial would be the only opportunity
remaining for plaintiff to take advan-
tage Of the defects in these separate
answers.
1t is contended by defendant that
the alleged contract was to pay the
debts of others, that is, those insured
and therefore within the statute OF
frauds. There is, we think, some evil
dence that the entire crdit was given
to defendant, and that his promise
was an original undertaking, and not
within the statute, even though the
transaction Injured to the benefit oi
others. Mackey V. Smith, 21 Or, 59S
603; Peterson v. Creason, AZ Or, SO
IL; Chaplin " Lapham, 20 Pick, 467
Chase v. Day, II Johnson 113; 20 A
& E. Ency. Y ed), 900; 20 Cyc, 1870
The contention is also made thai
plaintiff is not the real party in in
terest The evidence tends to show
that plaintiff was responsible to thu
st. Paul Fire & Marine Insurance
Co. for the premiums; that he hat
paid the same to such company, ant
that he was the real party in interest
When an insurance company look