Clevenger v. Smith

By filing an amended answer after the demurrer to the further and separate defense in the original answer was sustained the original answer ceased to be a part of the pleadings. The pleadings, upon which the trial was conducted, are the complaint, the amended answer and the reply thereto. It is elementary law that in order to prove an illegal consideration the facts constituting the alleged illegality must be pleaded: 13 C. J. 742, §890; Wilson v. Prettyman, 94 Or. 275 (185 Pac. 587); Whitney v. Day, 86 Or. 268 (168 Pac. 295). The amended answer contains no facts tending to show failure of…