Oregon Supreme Court March 24, 1908 (Simpson v. Miller)

Opinion by

Me. Commissioner Slater.

It is not clear that, under the pleadings and evidence in this case, defendant can bar the prosecution of the action by a motion for a nonsuit based upon reasons which amount to an affirmative defense, but are not pleaded. Plaintiff has alleged a sale to defendant of an undivided interest in some timber for a definite sum.