91 P. 1077 | Or. | 1907
Opinion by
1. 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 insists 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 Pac. 777); Daly v. Larsen, 29 Or. 535 (46 Pac. 143).
2. When a defendant controverts the allegations of a complaint by his answer, and also séts 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 plaintiff’s hypothesis, and the adoption of either legal principle by the court, after a trial of the issue without a jury, necessarily implies a rejection of the theory of the adverse party. If the findings of fact in such a case conform to the proposition, as evidenced by the material controverted averments of either party, and are adequate to uphold the judgment based thereon, the conclusion reached, as the result of a judicial investigation, is sufficient in law, though no findings are made in respect to the theory of one of the parties: Lewis v. First Nat. Bank, 46 Or. 182 (78 Pac. 990); Jennings v. Frazier, 46 Or. 470 (80 Pac. 1011).
•3. When the plaintiff secures a judgment on the trial of an action without a jury, the court’s findings of fact must conform
4. It is also maintained by plaintiff’s counsel that the averments of new matter in the answer do not constitute a defense to- the cause of action stated in the complaint, and hence the findings of fact, based on such allegations, are insufficient to support the judgment. The abstract fails to show that any demurrer to the answer was interposed. The statute declares that an objection to a complaint, on the ground that it does not state facts sufficient to constitute a cause of action, is not waived by failure to demur or answer: B. & C. Comp. § 72. No such provision has been enacted in respect to an answer. In
5. What the conditions of -the agreement were that was entered into between the plaintiff and White we have legally no means of knowing. An action to recover the possession of specific personal property, though designated in our statute as “claim and delivery” (B. & C. Comp. §284), is substantially the ancient remedy of1 replevin: Kimball v. Redfield, 33 Or. 292 (54 Pac. 216).
6. The alleged unlawful taking or detention of the goods or chattels of another, which characterizes the pleading invoking the remedy, makes the judicial means of enforcing the right asserted in the nature of an action ex delicto, in which a set-off of accounts existing between the parties cannot be settled. In this state a liberal construction has been given to the defendant’s pleading in actions of claim and delivery, and it has been determined that whatever demand he has that grows out of the same subject-matter as the plaintiff’s claim will be available as a defense, if specifically alleged: Guille v. Fook, 13 Or. 577 (11 Pac. 277); Nunn v. Bird, 36 Or. 515 (59 Pac. 808).
7. It is inferred from the court’s findings that the plaintiff
Believing that the findings of fact are adequate, the judgment is affirmed. Affirmed.