Klamath Ditch Co. v. Ream , 27 Or. 129 ( 1895 )

Opinion by

Mr. Chief Justice Bean.

1. The general rule is that an order of the trial court overruling a motion to strike out testimony which has been admitted without objection is not assignable error, (1 Thompson on Trials, §716; Baylies’ Trial Practice, §21,) but where evidence which, taken alone, is incompetent, is offered and admitted under objection, on the assurance of counsel that it will be followed by proof of other facts which will render it relevant and competent, and this promise is not kept, it is error to overrule a motion subsequently made to strike it out: Dillin v. People, 8 Mich. 357; Zell v. Commonwealth, 94 Pa. St. 258; Bayliss v. Cockcroft, 81 N. Y. 363; 1 Thompson on Trials, §716. Now, the evidence sought to be elicited by the questions to the witness Ball, that plaintiff furnished water for use on a farm owned by him, was clearly irrelevant to any issue in this case without proof of other facts tending to connect the defendants with its use in such a way as to render them liable for its value. Unless, therefore, such evidence was subsequently given by the plaintiff, the objection of defendants was well taken, and, being renewed by a motion to strike out, should have been sustained.

2. We are then under the necessity of examining the record to ascertain whether the evidence for plaintiff tended in any way to show a liability on the part of the defendants for the water furnished and used on the Ball Ranch in eighteen hundred and ninety. If it did not, plaintiff’s promise to render the evidence objected to relevant was not kept, and a motion to strike was well taken. We have carefully examined the record but failed to find any evidence whatever tending to show that the defendants are in any way liable for the debt sued for in this action. The'water was furnished to Ball at his request, for his own use, on his own credit, and, so far as the record shows, without the knowledge of the defendants, and certainly without their authority or direction. They did not own the farm upon which it was used, nor had they any control over it, but it belonged to Ball, who managed and controlled it, contracted all debts and obligations incurred in its management, bought the water in question, and sold and disposed of the grain raised thereon. The fact that in January, eighteen hundred and ninety-one, the farm was conveyed to the defendants to satisfy a debt secured by the mortgage which they held against it, and that the balance due Ball for grain sold by him was assigned to them, and that as a part of the contract or arrangement they assumed and agreed to pay certain debts of Ball, does not make them liable in this action for the debt of plaintiff which they did not assume. The theory of plaintiff seems to be that because Ball, long after his indebtedness to plaintiff was contracted, conveyed his farm to the defendants, and at the same time assigned to them the balance due him for grain sold, they are liable for all his outstanding obligations whether they agreed to pay them or not. This theory finds no support in law. It follows that the court erred in overruling defendants’ motion to strike out the testimony, and the judgment must be reversed, and the cause remanded for such further proceedings as may be proper, not inconsistent with this opinion. Reversed.