Allen v. People's Amusement Co.

167 P. 272, 85 Or. 636, 1917 Ore. LEXIS 356

Opinions

Mr. Justice Benson

delivered the opinion of the court.

Plaintiff’s counsel in a very able and interesting argument discusses many questions which are not before us. If the demurrer was properly sustained it is neither necessary nor proper for us to go further than to so declare. By Section 68, L. O. L., a demurrer is made the method of attacking a misjoinder of causes of action. The complaint contains a demand for relief based upon a breach of contract, and another upon assault and battery which is, of course, a tort. In Smith v. Day, 39 Or. 531, 537 (65 Pac. 1055), Mr. Justice Wolverton says:

“It is so well settled that an action on contract cannot be united with one arising ex delicto that it does not require a citation of authorities to support the proposition.”

The demurrer was properly sustained and the judgment is affirmed. Affirmed.

Mr. Chief Justice McBride, Mr. Justice Bean and Mr. Justice Harris concur.

Rehearing denied October 3, 1917.