Veasey v. Humphreys

• Decision Date: 20 July 1895
• Citation: 41 P. 8,27 Or. 515
• Parties: VEASEY v. HUMPHREYS.
• Court: Oregon Supreme Court

41 P. 8

27 Or. 515

VEASEY v. HUMPHREYS.

Supreme Court of Oregon

July 20, 1895

Appeal from circuit court, Wallowa county; M.D. Clifford, Judge.

Action by T.H. Veasey against Thomas Humphreys for possession of cattle. From a judgment for plaintiff, defendant appeals. Affirmed.

This is an action to recover 37 head of cattle. The complaint alleges, among other things, that during all the time from March 1 to August 23, 1893, R.M. Douney and D.C. Nicholson were partners, doing business under the firm name of Douney &amp Nicholson. That, on or about March 10, 1893, plaintiff sold and delivered to said firm a certain lot or drove of cattle taking for the purchase price thereof three joint and several notes, signed in their individual capacity, for the sum of $420 each, payable respectively 18, 30, and 42 months after date. That, to secure the payment thereof, "the said Douney & Nicholson did, on August 21, 1893, execute and deliver to plaintiff their certain chattel mortgage in writing upon all the cattle so sold," except two head thereof. The complaint then proceeds with appropriate allegations of the filing of the mortgage, its conditions and the breach thereof, of plaintiff's ownership and right to possession by virtue of such conditions, and of the wrongful taking and detention of the 37 head of cattle by defendant. Another action was commenced December 5, 1893, by plaintiff against defendant, to recover 33 head more. The allegations of the complaint are substantially the same as the first. The defendant filed an answer to each of these complaints, denying specifically each and every allegation thereof, including the allegation of the execution and delivery of the mortgage by Douney & Nicholson to plaintiff. By each of said answers, defendant justifies his taking and detention, as sheriff of Wallowa county, Or.,--the first under a writ of attachment, and the second under an execution duly issued out of the circuit court in and for said county in an action by A. Levy v. R.M. Douney, for the purpose of subjecting Douney's undivided one-half interest to the payment of Levy's claim against him. In the further and separate defense to the first complaint, it is alleged: "That, on or about the 21st day of August, 1893, *** the plaintiff and said D.C. Nicholson, conspiring together, and without any consideration, and in bad faith, attempted to place all the property herein described beyond the reach of the creditors of the said R.M. Douney, by then and there pretending to execute said alleged chattel mortgage mentioned in plaintiff's complaint, and that any and all claims of plaintiff in and to said property, or any part thereof, are fraudulent and void, as against the rights of said creditors of the said R.M. Douney, and especially fraudulent and void as against the rights of said A. Levy, and said plaintiff received said alleged chattel mortgage with full knowledge that the same was attempted to be executed by the said D.C. Nicholson without any consideration at all, and for the sole purpose of hindering, delaying, and defrauding the creditors of the said R.M. Douney." The answer to the second complaint being substantially the same, the two cases were consolidated, and tried as one. At the trial, the chattel mortgage, which was signed "Douney & Nicholson" and witnessed by one W.W. White, was offered in evidence, and admitted by the court, over objections by the defendant, based upon the ground that, the execution of said instrument having been witnessed by W.W. White, he should have been called, or his absence accounted for, before other proof of its execution was admissible. The verdict and judgment being for plaintiff, the defendant appeals.

Ivanhoe & Sheahan, for appellant.

J.Nat. Hudson and T.G. Hailey, for respondent.

WOLVERTON J. (after stating the facts).

It is claimed by the plaintiff that the execution of the chattel mortgage in question was admitted by the pleadings (and that he was entitled to have it admitted in evidence without other proof of its execution. This contention involves to some extent a consideration of the rules of pleadings touching the allegation of new matter constituting a defense. The statute provides (Hill's Ann.Laws Or. § 73, subd. 2): "The defendant may set forth by answer as many defenses and counterclaims as he may have. They shall each be separately stated, and refer to the cause of action which they are intended to answer in such manner that they may be intelligibly distinguished." New matter pleaded under this statute, which goes to defeat the plaintiff's cause of action, logically speaking, if not expressly, it impliedly admits a real or apparent right in plaintiff to be thus avoided. Such a plea at common law was by way of confession and avoidance, in which the defendant had to give color to the plaintiff. By this is meant...