Siverson v. Clanton

¶11. It is contended that the complaint does not state facts sufficient to constitute a cause of action. Though this question was not raised at the trial it was not waived and can be insisted upon in this court: Section 72, L. O. L.

¶22-6. From the averment in the complaint that the defendants “took, converted and appropriated such trap to their own use,” it might seem that the action was trover, which is a remedy to recover the value of personal property wrongfully converted by another to his own use, in which the damages sustained constitutes tbe gist of the action and affords the due measure of recovery : Walker v. First Nat. Bank, 43 Or. 102 (72 Pac. 635); Eldridge v. Hoefer, 45 Or. 239 (77 Pac. 874); Lee Tung v. Burkhart, 59 Or. 194 (116 Pac. 1066). In Eldridge v. Hoefer, 45 Or. 239 (77 Pac. 874), Mr. Justice Bean in speaking of an action of trover remarks:

*266“The title to the property alleged to have been converted is regarded as having passed to the defendant, who is liable for its value, with simple interest.”

¶3Though the complaint alleges that the defendants deprived the plaintiff of his title to the fish-trap and withheld the possession thereof from September-, 1912, until the 12th of that month, it might be inferred from such averment that notwithstanding the possession of the trap had been surrendered to the plaintiff, the defendants held the title thereto. Any deduction to that effect is dispelled, however, by the allegation of the answer to the effect that Clanton notified the plaintiff of his intention to institute proceedings for the condemnation and confiscation of the trap, unless the latter paid $1,000 for its release, which sum was given for that purpose and not otherwise. This averment practically concedes that the title to the fish-trap was in the plaintiff, otherwise there would have been no need of commencing an action to take, for the benefit or advantage of the public, the property of a private owner without his consent. A fair construction of the allegations of the complaint, which were not challenged by demurrer, but are thus aided by the averments of the answer, leads to the conclusion that the action litigated was not trover, but duress of personal property, which unlawful constraint consisted in the alleged seizing by force and withholding from the plaintiff, who was entitled thereto, the possession of the fish-trap and in demanding of him the payment of a sum of money as the condition of its release: 2 Cooley, Torts (3 ed.), 970. It must be admitted that it is not duress for a person to threaten to commence a civil action, or to institute legal proceedings, or to declare his intention to resort to the courts in order to enforce *267what he believes to be his rights: 9 R. C. L., p. 722, par. 11. Though in Oregon a statute makes the title to negotiable instruments defective when a signature thereto was obtained by duress (Section 5888, L. O. L.), we have no enactment to avoid contracts, other than marriage, on that ground: Section 7018, L. O. L. In the absence of such legislation, the remedy of the defrauded party for duress of goods is usually limited to a recovery back of the payments which were exacted by reason of the duress: 9 R. C. L. 712, par. 3.

“To constitute duress, it is sufficient if the will be constrained by the unlawful presentation of a choice between comparative evils; as inconvenience and loss by the detention of property, loss of property altogether, or compliance with an unconscionable demand. It has been held, however, that duress of property cannot exist without there being a threat to do some act which the threatening party has no legal right to do,— some illegal exaction, or some fraud or deception. The restraint must be imminent and such as to destroy free agency without present means of protection”: 9 E. C. L. 723, par. 12.

¶4It is evident the plaintiff then had no present mode of protection, for if he had attempted by legal means to have secured possession of the fish-trap it is probable the master fish warden would immediately have caused proceedings to be instituted in the proper court for the condemnation and sale of the appliances for an unlawful use thereof, in the manner prescribed: Section 5321, L. O. L.; Nicklas v. Rathburn, 69 Or. 483 (139 Pac. 567). Instead of resorting to the mode thus provided by law the defendants, undoubtedly acting as they believed in the interests of the public and to protect the great fishing industry, personally undertook to discharge the duties of judge and sheriff, and *268the plaintiff, in order to secure the immediate possession of his fish-trap, paid the sum of money demanded as a condition of its release.

¶5As no demurrer was interposed to the complaint, its averments will be much more liberally construed than when they are formally challenged at the proper time: North v. Union Savings & Loan Assn., 59 Or. 483 (117 Pac. 822). Thus interpreting the initiatory pleading, it is believed the cause set forth therein sounds in tort for duress of property and that the complaint states facts sufficient to constitute a cause of action.

¶67. The defendants’ attorney on September 9, 1916, moved to set aside the judgment, rendered herein July 17th of that year, on'the ground that the findings of fact and of law were made and entered without affording an opportunity to object thereto or to request others, and thereupon objections were interposed to the findings as made, and other findings in lieu thereof were requested. These objections are based on the ground that the findings state facts which are not included within the issues. Without admitting that such challenges are properly before us for consideration, because they were not made before the judgment was given, it may he said that when a cause is tried without the intervention of a jury, findings of fact, without any requests therefor, must be made upon all the material issues. These findings may involve several subordinate matters which have been controverted by the testimony in respect to which demands for findings thereon are essential: Reade v. Pacific Supply Assn., 40 Or. 60 (66 Pac. 443); Jennings v. Frazier, 46 Or. 470 (80 Pac. 1011). All the findings so objected to come fairly within this principle and it may he assumed that they were made pursuant to a request therefor by plaintiff’s counsel.

¶7*2698. The requested findings, except in one particular hereinafter mentioned, conform to the averments constituting the separate defense. These allegations of new matter, not having been controverted by any reply, were admitted and as there was no issue in respect thereto, findings of fact thereon were unnecessary: Luse v. Isthmus etc. R. Co., 6 Or. 125 (25 Am. Rep. 506); Fink v. Canyon Road Co., 5 Or. 301; Moody v. Richards, 29 Or. 282 (45 Pac. 777); Vuilleumier v. Oregon Water P. & R. Co., 55 Or. 129 (105 Pac. 706).

¶89,10. The court refused to grant the further request of the defendants ’ counsel to the effect that when plaintiff had consulted an attorney in respect to his rights in and to the fish-trap, after it was seized, and he had been fully advised in relation to the matter, he paid $1,000 and thereupon the appliance was released and an exception to such ruling was undertaken to be saved. If this request had been made before the judgment was rendered a very different question would be presented, assuming as we must that testimony had been received tending to substantiate a subordinate controverted fact. It was incumbent upon the defendants’ attorney to ask the court to make particular findings of fact and if his request were denied to except to the rulings thus made. As the defendants’ representative he had his day in court and should have acted promptly in their behalf, but having failed in this particular, the only questions to be considered, are: Does the complaint state facts sufficient to constitute a cause of action, and do the findings of fact as made support the final conclusion reached.

¶9"We conclude these inquiries should be answered in the affirmative, and such being the case the judgment is affirmed. Affirmed. Rehearing Denied.

¶10*270Modified April 9, 1918.