Freeman v. Trummer

• Decision Date: 22 October 1907
• Citation: 50 Or. 287,91 P. 1077
• Parties: FREEMAN v. TRUMMER.
• Court: Oregon Supreme Court

91 P. 1077

50 Or. 287

FREEMAN v. TRUMMER.

Supreme Court of Oregon

October 22, 1907

Appeal from Circuit Court, Multnomah County; Arthur L. Frazer Judge.

Replevin by I. Freeman against Louis Trummer. From a judgment in justice court for defendant, plaintiff appealed, and from a like judgment of the circuit court again appeals. Affirmed.

This action was commenced in the justice's court for Portland district to recover the possession of certain personal property, or the value thereof in case delivery cannot be had, and damages for the alleged unlawful detention; the complaint being in the usual form. The answer denied generally, each allegation of the complaint, and for a further defense contains the following averments: "(1) That the defendant was the owner on the 1st day of May, 1905 and entitled to the possession of, and ever since has been and now is the owner of and entitled to the possession of one National cash register of the value of $125. (2) That on or about May 1, 1905, during which time the said National cash register was in the possession of one W.M. White, said cash register being situated in the building known as No. 46 Fourth street, in the city of Portland, county of Multnomah , state of Oregon, the plaintiff wrongfully and unlawfully converted said National cash register to his own use, and in place thereof left one certain Hallwood cash register, which is mentioned in paragraph 1 of plaintiff's complaint, and that said Hallwood cash register is now rightfully in the possession of the defendant, and the defendant holds said Hallwood cash register in trust until such time as the plaintiff returns the defendant's aforesaid National cash register, which is now held by plaintiff wrongfully and unlawfully." The reply denied the allegations of new matter in the answer, and, the issue having been tried, the defendant secured a judgment, to review which the plaintiff appealed to the circuit court for Multnomah county, where the cause was tried, by stipulation of the parties, without the intervention of a jury, and the following findings of fact were made, to wit: "(1) That the allegations complained of in plaintiff's complaint are not true, in so far as the plaintiff is entitled to the immediate possession of a certain Hallwood cash register of the value of $170, located and situated at 46 Fourth street, in the city of Portland, Multnomah county, Or. (2) That the defendant was the owner on the 1st day of May, 1905, and entitled to the immediate possession of, and ever since has been and now is the owner of and entitled to the immediate possession of, one National cash register of the value of $125. (3) That on or about May 1, 1905, during which time the aforesaid National cash register was in the possession of one W.M. White, said cash register being situated in the building known as No. 46 Fourth street, in the city of Portland, Multnomah county, Or., the plaintiff wrongfully and unlawfully converted said National cash register to his own use, and in place thereof left one certain Hallwood cash register, which is mentioned in paragraph 1 of plaintiff's complaint, and the one for which this action of replevin is brought by the plaintiff, and that said Hallwood cash register is now rightfully in the possession of the defendant, and the defendant rightfully and lawfully holds said Hallwood cash register until such time as the plaintiff returns defendant's aforesaid National cash register, which is now held by the plaintiff wrongfully and unlawfully. (4) That at the time the plaintiff took the defendant's National cash register from the possession of W.M. White, and replaced the same by a Hallwood cash register, the plaintiff had full knowledge, and knew that the National cash register did not belong to the said W.M. White, but that the National cash register was owned by and belonged to the defendant. (5) That the plaintiff is not entitled to damages or his costs, but that the defendant is entitled to his costs and disbursements." From the foregoing findings of fact, the following conclusions of law were made: "(1) That the defendant now is entitled to the immediate possession of the Hallwood cash register, and that he holds the same rightfully and lawfully. (2) That the plaintiff cannot recover the possession thereof until the plaintiff return to the defendant the National cash register which he unlawfully withholds the possession of from said defendant." Based on such findings, judgment was given for the defendant, from which the plaintiff appeals to this court.

M.B. Meachan, for appellant.

John F. Logan and John C. Shillock, for respondent.

MOORE J. (after stating the facts as above).

The only deduction announced by the court that is consistent with the averments of the complaint is the conclusion of law that the plaintiff is not entitled to the immediate possession of the demanded property, and, because no findings of fact were made conformable to the allegations of the plaintiff's primary pleading, his counsel insist that an error was thereby committed. Findings of fact made by a court, when an action is tried without the intervention of a jury, are equivalent to special verdicts, and must be based upon, and as broad as, the material issues involved. B. & C. Comp. § 158; Moody v. Richards, 29 Or. 282, 45 P. 777; Daly v. Larsen, 29 Or. 535, 46 P. 143. When a defendant controverts the allegations of a complaint by his answer, and also sets up facts intended to constitute a complete defense to the cause of action stated, he thereby presents a theory of the case that is usually inconsistent with the...