Pelton v. General Motors Acceptance Corp.
| Citation | 139 Or. 198,9 P.2d 128 |
| Parties | PELTON v. GENERAL MOTORS ACCEPTANCE CORPORATION et al. |
| Decision Date | 22 March 1932 |
| Court | Oregon Supreme Court |
Department 2.
Appeal from Circuit Court, Multnomah County; Jacob Kanzler, Judge.
On petition for rehearing.
Petition denied.
For original opinion, see 7 P.2d 263.
Nicholas Jaureguy, of Portland (Jaureguy & Tooze, of Portland, on the brief), for appellant.
Henry S. Westbrook, of Portland, for respondent.
We agree that it was not accurate to state in the original opinion that "counsel for defendant concedes that it would be proper to affirm the judgment for the amount of compensatory damages." Counsel for defendant, however did say in effect that, rather than have the case reversed and remanded for a new trial, the defendant would consent to a judgment for the amount of compensatory damages.
Criticism is directed to the following italicized portion of the opinion wherein it was stated: "We can determine this case only under the issues as made in the pleadings and since defendant saw fit to allege default in payment alone as ground for the repossession of the car, we confine ourselves to such issue." We agree that under a general denial the defendant had the right to attack the title of the plaintiff or his right to possession of the automobile bye offering in evidence anything which would tend to refute the allegations of ownership or the right to possession. However, in the instant case, default in payment alone was alleged as a ground for repossession of the car, and it is conceded in the brief of appellant that such was the only reason assigned when the car was repossessed. We are firmly of the opinion that, in reviewing a case on appeal, we should confine ourselves to the theory upon which it was tried in the lower court. In the brief upon petition for rehearing, counsel for defendant states that his only purpose in alleging default in payment and a balance due under the conditional sales contract was to afford a basis for mitigation of compensatory damages. Barber v. Motor Investment Co., 136 Or. 361, 298 P 216. If it was the purpose to plead a partial defense, it should have been so alleged. As stated in 49 C.J. 209 "A partial defense when not pleaded as such is to be treated as a complete defense." This case was given careful consideration on original hearing, and we can see no reason for disturbing the judgment of the lower court. The verdict was...
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Sterling v. Cupp
...circuit court: Johnson v. Davidson, 168 Or. 379, 123 P.2d 179; Harlow v. Chenoweth, 158 Or. 343, 75 P.2d 937; Pelton v. General Motors Acceptance Corp., 139 Or. 198, 9 P.2d 128, 7 P.2d 263. We deem it unnecessary to burden this page with additional citations from our reports; the rule just ......
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Fowler v. Courtemanche
...General Electric Co., 151 Or. 519, 49 P.2d 993, 100 A.L.R. 1370; Pelton v. General Motors Acceptance Corporation, 139 Or. 198, 7 P.2d 263, 9 P.2d 128. We hold that there was substantial evidence authorizing the jury in its discretion to award punitive We must next consider the defendants' c......
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Hall v. Work
...property rights of plaintiff or other aggravating circumstances. See Pelton v. General Motors Acceptance Corp., 139 Or. 198, 7 P.2d 263, 9 P.2d 128; McCarthy v. General Electric Co., 151 Or. 519, 49 P.2d 993, 100 A.L.R. 1370; Fowler v. Courtemanche et al., 202 Or. 413, 274 P.2d 258; J & J L......
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Gordon Creek Tree Farms, Inc. v. Layne
...* * *' See, also, Bowles v. Creason, 156 Or. 278, 298, 66 P.2d 1183; Pelton v. General Motors Accept. Corp., 139 Or. 198, 205, 7 P.2d 263, 9 P.2d 128. Under the court's findings of fact the judgment as rendered for double instead of treble damages was clearly proper. And lastly the defendan......