Stilwell v. McDonald

BURNETT, C. J. Under Section 10227, Or. L., “any person who shall depasture or feed any * * livestock,” at the request of the owner or lawful possessor thereof, shall have a lien upon such property for his just and reasonable charges for the labor, care and attention he has bestowed, and the food he has furnished, and he may retain possession of such property until such charges are paid. By the following section, a procedure for enforcing the lien is prescribed. In Section 10229 it is enacted that “the provisions of the last three sections shall not interfere with any special agreement of the parties.” 1-4. It may well be conceded that replevin is a possessory action and that if personal property is [677] wrongfully taken from one who has a right to retain that possession for the satisfaction of a lien which he has upon the property, he may retain replevin to recover that possession. Reinstein v. Roberts, 34 Or. 87 (55 Pac. 90, 75 Am. St. Rep. 564), is a typical case of this kind. It is competent, however, for parties to waive their rights to a lien under the statute. Indeed, legislative utterance has been given to this principle in Section 10229, Or. L., supra. It is especially provided in the contract that the “party of the second part has the right to remove any of said cattle or horses from the premises at any time at his option.” This clause defeats the right of the plaintiff to retain the possession of the cattle, unless the complaint states facts enough to warrant us in disregarding the contract. In other words, it is incumbent upon the plaintiff to show not only a right to rescind the contract, but also that it has actually been rescinded. The plaintiff does not state generally that he has duly performed the contract on his part, as well he might under Section 88, Or. L., but contents himself with saying that he pastured the cattle. The other clause of the contract, to the effect that he was to look after them properly and furnish salt for them during the season of 1919, receives no attention from the pleader. No party has a right to an action on the contract unless he himself has performed it or has been prevented from full performance by some act or default of the other party. By a parity of reasoning, he has no right to rescind a contract upon which he is in default. By failing to aver his complete performance of the contract, the plaintiff does not disclose a condition which entitles him to sweep aside the contract and regard it as destroyed. The clause relating to [678] the right of the second party to remove the stock from the premises at any time at his option, remains unimpaired, for all that appears in the complaint. The conclusion is that the defendants have a contractual right to take possession of the cattle, and hence no wrong has been committed against the plaintiff which he is entitled to redress by replevin. 5. Another objection to the complaint, urged by the defendants, is that the description of the cattle is so indefinite as to afford no foundation for a judgment. If the plaintiff would recover a judgment in replevin, he must in his complaint formulate a description of the property sought to be replevined which carried into the judgment and thence into the execution will enable the officer enforcing the writ to identify the chattels. The writ must be founded upon a valid judgment. The judgment in turn cannot be more comprehensive in its scope than the complaint upon which it is founded. Guille v. Wong Fook, 13 Or. 577 (11 Pac. 277), is a leading case on the subject here involved. There, the plaintiff sought to replevin “68 head of hogs on the macadamized road in said county, on the place formerly kept by Wong Hin Soon.” This description was characterized by the court as very indefinite. The verdict, however, was “for the immediate possession of that portion of property described in the complaint, to wit, 49 hog's.” It was there held that the verdict was not sufficient to support a judgment, owing to the indefiniteness of the description. Here, the complaint states that the plaintiff pastured 304 head of cattle. True enough, he says that 152 were beef, and an equal number stock cattle; but he says that on October 11th, the date of the taking, the plaintiff had in his possession 152 [679] head of said cattle. Whether this latter number referred to stock or beef cattle is not stated. The description would apply equally to steers, cows, yearlings, two year olds or any other of the cattle on a thousand hills. Under the authority of Guille v. Wong Fook, supra, the description is so indefinite as not to support replevin. Which 152 head of cattle out of the larger number of 304 were intended by the pleader cannot be determined from the complaint. The defect in the description therein contained is fundamental, and unless the property is so described in the initiatory pleading that one taking the description could be able to identify the property with reasonable certainty, the judgment and the consequent writ would be defective. The demurrer was properly sustained, and the judgment is affirmed. Affirmed. Rehearing Denied. Bean, J., concurs in the result.