Mayes v. Stephens

• Decision Date: 04 February 1901
• Citation: 63 P. 760,38 Or. 512
• Parties: MAYES v. STEPHENS.
• Court: Oregon Supreme Court

63 P. 760

38 Or. 512

MAYES v. STEPHENS.

Supreme Court of Oregon

February 4, 1901

Appeal from circuit court, Douglas county; J.W. Hamilton, Judge.

Action by J.G. Mayes against R.L. Stephens. From a judgment in favor of the defendant, plaintiff appeals. Reversed.

This is an action to recover the possession of a tubular boiler, or its value in case possession thereof cannot be secured, and damages for its detention; the plaintiff substantially alleging that he is the owner and was in the possession of the property when it was unlawfully seized by the defendant who refused to surrender it upon a demand therefor, and that he is entitled to the immediate possession thereof. The defendant denied the material allegations of the complaint and averred that said boiler was real estate which he, as sheriff of Douglas county, Or., attached as the property of one G.W. Riddle, in pursuance of a writ duly issued out of the circuit court for said county in an action wherein the latter was defendant, which acts constitute the alleged wrongful seizure and detention of which the plaintiff complains. The reply denied the material allegations of the answer, and averred that prior to such seizure Riddle detached said boiler, and delivered the possession thereof to the plaintiff, to whom he also gave a chattel mortgage thereon to secure a promissory note for the sum of $500 payable on demand, which mortgage was immediately filed with the clerk of said county, and provided that, if said property was attached by the creditors of the mortgagor, the said note should at once become due and payable, and that plaintiff might sell the boiler in the manner prescribed by law. The reply further averred that said conditions have been broken. The court, upon motion, struck out the allegations of new matter in the reply, and, plaintiff having introduced his testimony and rested, a judgment of nonsuit was given whereupon he appeals.

O.P. Coshow, for appellant.

J.C. Fullerton, for respondent.

MOORE J. (after stating the facts).

It is contended by plaintiff's counsel that the court erred in striking out the allegations of new matter in the reply while defendant's counsel maintain that the averments so stricken out constituted a departure from the allegations of the complaint, and hence no error was committed in this respect. The statute permits a plaintiff to allege in his reply any new matter not inconsistent with the complaint, which constitutes a defense to new matter in the answer. Hill's Ann.Laws, § 76. The facts relied upon as a ground of action should generally be stated in the complaint; for, if the reply allege matter which constitutes an original cause of action, the averment of the latter pleading will be treated as a departure. Lillienthal v. Hotaling Co., 15 Or. 371, 15 P. 630; Wyatt v. Henderson, 31 Or. 48, 48 P. 790; Fisk v. Basche, 31 Or. 178, 49 P. 981. But a new assignment in the reply, designed to affirm the averments of the complaint by correcting the defendant's mistake in regard thereto, is not a departure. Bliss, Code Pl. (2d Ed.) § 396. Matter which sustains a pleading is no departure, if set up in the reply, though it might have been set out in the complaint (Fitnam, Trial Proc. § 581), the rule being that the complaint and reply, when not repugnant, should be read together to determine the pleader's intent ( Lavery v. Arnold, 36 Or. 84, 57 P. 906, 58 P. 524; Cederson v. Navigation Co. [ Or.] 62 P. 637). In Conklin v. Botsford, 36 Conn. 105, an action having been commenced to recover damages for the conversion of a horse and a quantity of hay, it was alleged in the complaint that said property was "the plaintiff's own proper estate." The answer averred that the defendant, as an officer, in pursuance of an execution against the plaintiff, levied upon and sold the property. The reply alleged that the horse and hay, at the time they were seized, were held by him in right of his wife, as trustee for her under the statute. A demurrer to the reply having been interposed, it was held that there was no departure between the complaint and the reply. In Bank v. Richards, 6 Mo.App. 454, an action was instituted to recover a dividend on certain shares of capital stock which the complaint alleged the plaintiff owned and held, and, the reply having averred that he held said stock as a pledge, it was held that no departure existed, and the judgment thus rendered was affirmed on appeal. Bank v. Richards, 74 Mo. 77. A departure occurs when a party in a subsequent pleading abandons the cause of action which he at first stated, and chooses another, inconsistent with, and which does not support or fortify, the theory originally adopted. 6 Enc.Pl. & Prac. 460. In Herring v. Skaggs, 73 Ala. 446, it was held that, while it is a general rule of pleading that a replication must not depart from the allegations of the declaration in any substantial manner, yet, when the cause of action is stated generally in the declaration, the plaintiff may, if necessary, in a replication to a special plea, restate it in a more minute and circumstantial manner. To the same effect, see Bank v. Hartfield, 5 Ark. 551; Palmer v. Hayes, 112 Ind. 289, 13 N.E. 882; Hallett v. Slidell, 11 Johns. 56; Troup v. Smith's Ex'rs, 20 Johns. 33; Rosby v. Railway Co., 37 Minn. 171, 33 N.W. 698; Houston v. Sledge, 101 N.C. 640, 8 S.E. 145, 2 L.R.A. 487. The test of departure is determined by a negative answer to the inquiry whether evidence of the facts alleged in the reply is admissible under the allegations of the complaint. 6 Enc.Pl. & Prac. 462; Estes v. Farnham, 11 Minn. 423 (Gil. 312). Applying to the case at bar the standard thus suggested for ascertaining a departure in a pleading, the question is presented whether evidence of the plaintiff's special property in the boiler by reason of his chattel mortgage thereon was admissible under the allegation of his general ownership thereof, as stated in the complaint. The statute confers upon the mortgagee of chattels the right to their immediate possession whenever a breach occurs in the condition of the mortgage, and, if possession thereof be not delivered to him upon demand, he may recover the same in an action therefor. Hill's Ann.Laws Or. §§ 132, 3837. It was formerly held in this state that a mortgage of chattels created only a lien upon the property affected thereby ( Chapman v. State, 5 Or. 432; Knowles v. Herbert, 11 Or. 240, 4 P. 126); but it was subsequently determined that upon a breach of the condition of a chattel mortgage the mortgagee thereby secured a qualified ownership in the property ( Machine Co. v. Campbell, 14 Or. 460, 13 P. 324; Marquam v. Sengfelder, 24 Or. 2, 32 P. 676; Reinstein v. Roberts, 34 Or. 87, 55 P. 90). In Moorhouse v. Donaca, 14 Or. 430, 13 P. 112, the plaintiff, having commenced an action to recover the possession of a header, alleged in the complaint that he was the owner and entitled to the possession thereof. At the trial testimony was introduced tending to prove that plaintiff's interest in the property resulted from a chattel mortgage given thereon, and, the court having instructed the jury that if they found that the machine...