specially concurring.
While I concur in the result, I find the rationale of the majority opinion wholly untenable. As the following explanation makes clear, the majority opinion ignores essential facts in this case and disregards the plain requirements of the Assumed Business Name Law, ORS 648.010, et seq.
Plaintiffs in paragraph I of their amended complaint alleged:
"* *,* Plaintiffs were partners doing business as Oregon Mountain Wood in said County and State.”
ORS 648.090 provides:
*731"No persons carrying on, conducting or transacting business in the manner described in ORS 648.010, or having any interest therein, are entitled to maintain any suit or action in and of the courts of this state without alleging and proving that they have registered the assumed business name as provided for in ORS 648.010 with respect to the county in which the person conducted the business giving rise to such suit or action.”
Plaintiffs, having alleged that they were partners doing business as Oregon Mountain Wood, were required by ORS 648.090 to prove that they had "registered the assumed business name as provided for in ORS 648.010 * * *.”
If I understand the reasoning of the opinion, the majority is saying that because the original contract in issue was signed by plaintiff Klasnik only, the Assumed Business Name Law does not apply. This ignores the actual facts as well as the judicial admission contained in paragraph I of plaintiffs’ amended complaint, which the majority dismisses as "a puff of smoke.” What the majority is now saying is that ORS 648.010 does not apply when only one member of a firm signs a contract and does not sign the firm’s name to the instrument. This emasculates the mandatory language of ORS 648.010 quoted earlier, and would effectively permit any plaintiff to plead himself around the express requirement of this section.
The testimony at trial was that both plaintiffs were carrying on a logging business as a partnership but that at defendant’s suggestion and request, because Denlinger was under 21 years of age at the time, only Klasnik signed the contract. Denlinger testified that he borrowed money from his credit union for his share of the downpayment on the tractor which plaintiffs were buying jointly from defendant. An inspection of the contract itself shows that the names of both plaintiffs appear but Denlinger’s name was lined out, then initialed by both Hutchinson and Klasnik. Denlinger testified that he allowed Klasnik to handle the *732negotiations that led up to the signing as well as the modifications of the original contract, but that he kept abreast of matters through Klasnik.
As I see the facts, the Assumed Business Name Law plainly does apply here, but defendant waived plaintiffs’ failure to allege and prove that plaintiffs’ as-sinned business name was so registered with the Corporation Commissioner by not objecting on that ground in the plea in abatement proceeding, but rather on the ground that a third individual, Neal Kievan, was a party in interest as a membership of the partnership. Uhlmann v. Kin Daw, 97 Or 681, 694, 193 P 435 (1920); Columbia River Door Co. v. Todd, 90 Or 147, 175 P 522 (1918); and Beamish v. Noon, 76 Or 415, 149 P 522 (1915). Further, defendant himself filed proof of plaintiffs’ registered assumed name in the earlier proceeding on defendant’s plea in abatement. Wells v. Davis, 258 Or 93, 95, 480 P2d 699 (1971). This proof was confirmed by plaintiffs in that same proceeding when plaintiffs filed a copy of the certification of assumed business name and proof of the withdrawal of the interest of Neal Kievan.
An example of the application of the doctrine of waiver in a similar factual situation is found in Rowland v. National Reserve Ins. Co., 118 Or 139, 246 P2d 210 (1926). In Rowland the court held that it was an abuse of trial court discretion to allow a plea of abatement to be heard regarding a defect affecting the capacity to sue raised after the plaintiff could no longer cure the defect.
Richardson, J., joins in this specially concurring opinion.