Lun v. Mahaffey

McBRIDE, C. J. There is an interesting discussion in the briefs of counsel as to whether this is an action in trover or on trespass. We think the distinction of little consequence, although the complaint lacks many [299] of the elements of an action of trover and none of those which are required in an action of trespass. The gist of the controversy here is the unlawful entry upon the premises of plaintiff, ousting her therefrom and withholding possession from her. The removal of the plaintiff’s goods to another place is merely aggravation of the trespass. “Trover” is defined by Bouvier to be: “A form of action which lies to recover damages against one who has without right converted to his own use the goods or personal chattels in which the plaintiff has a general or special property.” 1-3. Plaintiff’s leasehold interest in the building was not a “personal chattel” and therefore not the subject of trover. However, the distinctions argued by counsel are not material here, as it was never the intent of our Code to require a pleader to conform his statement of facts to any of the common-law forms of action. If his complaint contains “a plain and concise statement of the facts constituting his cause of action,” it is sufficient, although it may sound partly in trover and partly in trespass. The complaint here is sufficient. 4. The first error alleged is the action of the court in sustaining the demurrer to plaintiff’s further and separate reply. The complaint alleged performance of all the requirements of the lease, both by the plaintiff and by Sadie Davis, her optionee or assignee in possession, and a wrongful and unlawful ouster of both by defendants; the reply alleges a collusion or conspiracy between Sadie Davis and the defendants in the trespasses and wrongs of defendants, in order to enable the defendants to terminate the lease and make a new contract with herself. In the complaint Sadie Davis was held out as a co-victim with plaintiff of the wrongful acts of the defendants. In the reply she was held out [300] as a conspirator with defendants in their alleged nefarious scheme to injure plaintiff. In this particular the reply is inconsistent with the complaint, constitutes a departure, and as such was vulnerable to the objection made. 5. The same is true as to the waiver attempted to be pleaded in the further and separate reply. As before remarked, the complaint proceeded upon the basis of absolute performance and it was inconsistent with that theory to plead a waiver of performance, or a waiver of any of the conditions of the lease. The conditions under which Sadie Davis was permitted to occupy the premises were as much a necessary part of plaintiff’s complaint as was the fact that Mrs. Mahaffey consented in writing to the assignment of the lease from Keiffer to plaintiff. If the allegations of the complaint are true, Davis never had possession except as the representative of plaintiff. Her possession would, upon the theory of the complaint, be plaintiff’s possession and an ouster of her would be an ouster of plaintiff. The plea is clearly a departure. The plaintiff says in substance by her complaint, “I performed and kept all the conditions of the lease.” By her separate reply she says: “If I did not perform the conditions of the lease as to subletting, or by assigning it, such condition was waived. ” In 6 Ency. PI. & Pr., page 462, quoted in defendants’ brief, it is said: ’ ' ' “Performance’, and excuse for nonperformance, are two distinct matters, and a party must aver with certainty upon which one he depends. Where the declaration or complaint avórs performance, and to a plea of nonperformance there is a replication or reply of excuse for nonperformance,-there is a departure.” [301] Such is the holding in this state. In Waller v. City of New York Ins. Co., 84 Or. 284 (164 Pac. 959), Mr. Justice Burnett states the rule as follows: “It is a rule of pleading in this state that where the plaintiff relies upon a contract he must show full performance on his part or else some valid excuse, as an example of which latter waiver may be classed, and that all this must appear in his complaint. In other words, the plaintiff must state his whole cause of action and all the grounds thereof in his first pleading. He cannot aver there that he has fully complied with the contract and, when charged in the answer with shortcomings in that respect, shift his ground in his reply and show that the omissions stated by the defendant were waived by it, thus excusing the plaintiff from performance.” The practice thus condemned is precisely what was attempted in the further separate reply. 6. This leaves plaintiff’s case in this position: She comes into court pleading full performance of all the conditions of the lease, including payment of the stipulated rent not later than March 12th, when the whole competent testimony on this subject shows that rent was not paid or tendered until after the time for payment had expired and a forfeiture had been declared. Whatever errors may have crept into the case, these facts settled the contention in favor of defendants and in themselves would have justified a directed verdict in their favor. This view render's it unnecessary to discuss the question as to the effect of Mrs. Mahaffey’s written consent to the assignment of the lease from Mrs. Keiffer to plaintiff, which has been so ably presented by counsel for plaintiff. The judgment is affirmed. [Affirmed.