any of the conditions herein contained, or should the party of the second part be in arrears in the payment of rent for a period exceeding ten days, the party of the first part or her legal representatives, may at once declare this lease forfeited, and may at once re-enter and repossess herself of the said premises, as of her former estate therein, forcibly if necessary, without in any manner being deemed guilty of trespass, or waiving any rights for the collection of any arrearages of rent." It is then alleged that on August 7, 1915, Keiffer, with the written consent of defend ant Mahaffey, assigned the lease to plaintiff, subject to all the terms and conditions of the original agreement. It is next alleged that on March 12, 1918, the rent for the month of March was not paid by plaintiff, although it was due and payable on March 1st, and was in arrears on March 12th; that by the terms of the lease plaintiff was in default and the lease forfeited by reason of nonpayment of rent; and that thereupon defendant Mahaffey exercised her option and declared the lease forfeited, and re-entered and took possession of the premises. The answer charges that the plaintiff, without the knowledge or consent of the lessor, contracted to and did sublet the premises to one Sadie Davis, in violation of the terms of her agreement, and thereby forfeited her lease, whereupon defendant Mahaffey declared the lease forfeited and re-entered and took possession of the premises. It is further alleged that on March 12, 1918, defendant Sargent, as the attorney and agent of defendant Mahaffey, sent the following notice to plaintiff, which was duly received by her on March 13, 1918: "La Grande, Or., March 12, 1918. "Mrs. Zellah May Lun, North Powder, Oregon -Madam: You are hereby notified that the lease on the second floor of the Mahaffey Building and the north storeroom of said building and middle basement thereof, held by you as as signee of Margaret E. Keiffer, is hereby terminated, for the reason that the rent is more than ten days in arrears, and the lease has been otherwise violated. Yours truly, W. B. Sargent, Agent and Attorney for Maggie D. Mahaffey." Plaintiff replied, admitting the existence and terms of the lease and the assignment by Keiffer, the fact that Sargent was the agent of Mahaffey, and the sending and receipt of the notice of forfeiture. The reply denies all other matter in the answer and contains the following affirmative allega tions: "That the rental under the lease mentioned in said answer and for several months prior to the month of March, 1918, had been paid by the said Sadie Davis mentioned in said answer under her option to purchase the said rooming house business, as described in the complaint herein and the lease thereon; and had for several months prior to and including the said month of March, 1918, occupied said leased property and had operated and run the same solely by herself for said time with full knowledge and consent of defendants, and without any objection in her so doing under the aforesaid option from said defendants or either of them or at all; that for said several months, including the month of March, 1918, the said rentals were all tendered within the time called for in said lease, and were all paid during each month to said defendants by the said Sadie Davis under her option as aforesaid, and said rentals were accepted by defendants therefor. "That during all the times mentioned in the last paragraph above, the defendants resided in the city of La Grande, Or., and the defendant Maggie D. Mahaffey on the lower floor of said Oregon rooming house, and by reason of the premises has waived any right to object to said occupation of said premises by the said Sadie Davis under her option aforesaid. * "That one Sadie Davis, now Sadie Johnson, conspired and colluded with defendants to terminate the lease set out in the answer herein, by premises to one Roberts, who was to hold the which collusion defendants were to rent said same and did hold the same in trust for said Sadie Johnson, and defendants were to receive $70 instead of $60 monthly rentals, and said defendants were to and did evict plaintiff from said leased premises, by which plaintiff was thereafter forced to sustain the loss and damage as mentioned in her complaint and the same was done for the purpose and intent of unlawfully accomplishing the objects and purpose above stated and by reason thereof did accomplish the same." The defendants demurred to the separate matter set forth in the reply, on the ground that: (1) It did not state facts sufficient to constitute a defense; (2) the facts stated did not constitute a waiver; and (3) it was a departure from the cause of action stated in the complaint. The demurrer was sustained and the cause came on for trial. Exceptions were saved to numerous obJections to instructions given by the court and to the refusal of the court to give others requested by plaintiff, but in our view of the issues these objections become immaterial. At the conclusion of plaintiff's testimony, a motion for nonsuit on behalf of Sargent was allowed. The jury returned a verdict for defendant Mahaffey, and plaintiff appeals. O. B. Mount, of Baker, for appellant. R. J. Green, of La Grande (W. B. Sargent, of La Grande, on the briefs), for respondents. above). There is an interesting discussion in MCBRIDE, C. J. (after stating the facts as 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 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 pos (185 P.) session from her. The removal of the plain- [sion would, upon the theory of the complaint, tiff's goods to another place is merely aggra- be plaintiff's possession, and an ouster of her vation of the trespass. would be an ouster of plaintiff. "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." The plea is clearly a departure. The plainperformed and kept all the conditions of the tiff says in substance by her complaint, “I 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 Enc. Pl. & Pr. p. 462, quoted in defendants' brief, it is said: "Performance, and excuse for nonperformance, are two distinct matters, and a party must aver Where the declaration or complaint avers perwith certainty upon which one he depends. [1-3] Plaintiff's leasehold interest in the building was not a "personal chattel," and therefore not the subject of trover. How. ever, 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-formance, and to a plea of nonperformance there law forms of action. If his complaint con- is a replication or reply of excuse for nonpertains "a plain and concise statement of the formance, there is a departure." 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 covictim with plaintiff of the wrongful acts of the defendants. In the reply she was held out as a conspirator with defendants in their alleged nafarious 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 posses 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 by 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 perform ance." 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 renders 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. (94 Or. 234) for interest accruing on the bonds during the OREGON ENGINEERING & CONSTRUC- time for which they were paid in advance as TION CO. v. CITY OF WEST LINN et al. (Supreme Court of Oregon. Dec. 2, 1919.) 1. APPEAL AND ERROR 1008(2) — DETERMINATION OF FAILURE OF EVIDENCE TO CALL FOR NONSUIT. On appeal in action at law, tried by agreement without a jury, the Supreme Court, in reviewing the trial court's denial of defendant's motion for nonsuit, can only inquire whether there is a total failure of evidence on any material issue. money advanced to the contractor for the purchase of materials. 8. APPEAL AND ERROR 1151(2)—MODIFICA TION OF JUDGMENT TO GIVE CREDIT. Under Const. art. 7, § 3, as amended in 1910 (see Laws 1911, p. 7), the judgment of the trial court for plaintiff will be modified by deducting therefrom an amount to which defendant is entitled as a credit for interest on advancements. Department 1. Appeal from Circuit Court, Clackamas 2. APPEAL AND ERROR 1011(1)—NO REVIEW County; J. U. Campbell, Judge. OF FINDING ON CONFLICTING EVIDENCE. Where there is plenty of evidence to support it, a finding of the trial court, though on conflicting evidence, is conclusive on appeal. 3. MUNICIPAL CORPORATIONS 374(4)—RECOVERY DESPITE DEVIATIONS NOT AUTHORIZED IN WRITING BY ENGINEER. In an action against a city to recover the price for constructing a reservoir and water system, in view of the contract, making the city's engineer the referee to determine the amount, quality, and fitness of work, and evidence showing that deviations from the contract by the contractor were at the instance of the engineer, held, that evidence supports court's finding for plaintiff contractor, despite deviations from the contract not authorized in writing by the engineer as required. 4. MUNICIPAL CORPORATIONS ERY FOR CONSTRUCTION OF IMPROVEMENT DE SPITE DEFECTS OF PLAN. 359-RECOV Where the work of a contractor to build a reservoir and waterworks system for a city was well done and in substantial compliance with its contract, and any unsatisfactoriness in the result was from a defective design, selected by the water commission, rather than from any fault of the contractor, the contractor can recover a retained portion of the price of the work, accepted by the water commission on recommendation of its engineer as required by the contract. 5. PLEADING 372-DENIAL OF ANSWER BY REPLY AS CREATING ISSUE. A demand of the answer, denied by the reply, is one of the issues for determination, though the prayer of the answer did not ask for affirmative relief on such account. 6. PLEADING FENSE. 80-ITEM OF ANSWER AS DE An item pleaded by the answer in reduction of any judgment recovered by plaintiff was pro tanto a defense. 7. MUNICIPAL CORPORATIONS 370 PAYMENTS ON IMPROVEMENT CONTRACT; RIGHT TO CREDIT FOR INTEREST ON ADVANCEMENTS. Where the contractor to build a city's water system and reservoir received its compensation in municipal bonds in advance, the city, when sued to recover a deficiency in payments, is entitled to a credit on any recovery Action by the Oregon Engineering & Construction Company, a corporation, against the City of West Linn, the Water Commission of the City of West Linn, and its members. From judgment for plaintiff, defendant City appeals. Modified and affirmed. This is an action to recover money. The plaintiff, on July 27, 1915, entered into a contract with the defendant city, whereby it agreed to construct a water system for such defendant. The complaint alleges that the erection of the reservoir and standpipe was sublet to the Standifer-Clarkson Company, a corporation, and that thereafter the plaintiff and the subcontractor fully performed the terms of the contract, except as modified in minor particulars under the direction of and upon the order of the city engineer, doing work and furnishing materials thereunder, to the amount of $58,671.19, and, through the subcontractor, performed extra work and furnished extra materials, under the direction of the city engineer, in the manner provided in the contract, amounting to $3,435, making the total sum earned $62,106.19. It is alleged that of this sum all has been paid, except $1,234.23, for which judgment is prayed. It further averred that on January 8, 1916, in accordance with the terms of the contract, the city engineer submitted his final and complete estimate of the work performed and materials furnished under the contract, which fixed the sum due as above set out; that on April 12, 1916, the city engineer, in accordance with the terms of the contract, delivered to the defendant city's water commission a certificate showing that more than 30 days had elapsed since the completion of the water system, and that no uncompleted or defective work has been discovered for which said water commission makes claim; that on December 27, 1915, the water commission, at a regularly called and conducted meeting, adopted a resolution accepting the work after 30 days from date; payment to be made if no liens were filed, with the exception that $1,500 be held back to secure the completion of certain details which could not be finished (185 P.) L. L. Stipp, of Oregon City (L. L. Porter, and J. F. Clark, both of Oregon City, on the brief), for appellant. J. Dean Butler, of Oregon City (J. G. Arnold, and Henry Bauer, both of Portland, on the brief), for respondent. BENSON, J. (after stating the facts as above). The assignments of error challenge the ruling of the court in denying defendant's motion for a nonsuit, and further urge that certain of the findings of fact are errone in winter weather. It then alleged that all such work has been done and accepted; that no liens or claims have been filed; that prior to the acceptance by the city engineer, and ever since, the water system has been in constant use by the defendant city, but that it wrongfully, arbitrarily, and without cause refused to accept and pay for the construction thereof; that the water commission, unreasonably and without cause, refuse to file with the city recorder a statement, as provided in the contract, declaring the work completed; that plaintiff has fully performed, ous. with approval of the engineer, etc. These [1] Since this is an action at law, and the allegations are followed by a prayer for judgment in the sum of $1,234.23, with interest and costs. The answer, after admitting the execution of the contract, denies certain of the allegations of the complaint as to the completion of the work, as to its acceptance by the commission, and as to any right of recovery by plaintiff, and then pleads affirmatively that S. A. Cobb was not the city engineer, and had no authority to order any deviation from the plans; such power being vested in H. A. Rands, who is alleged to have been defendant's authorized engineer. It is then explained that defendant's alleged acceptance of the work was in the following language: In case, by agreement of the parties, was tried tions will be allowed, except by written permis- "On or about the 20th day of each month "On motion the work of the Oregon Engi- this contract the contractor will be paid 80 during the progress of the work included in neering & Construction Company, putting in the water system for the city, was accepted. per cent. of the contract price of the estimated After 30 days from date, payment to be made, amount of said work returned by the engiif no liens or claims are on the same, with the calendar month; and the balance of said conneer as having been done during the preceding exception that $1,500 be held back for the completion of some details that cannot be done in be retained for a period of 30 days after the tract price, being 20 per cent. thereof, shall winter weather; $750 of said $1.500 to be ap- completion of the contract, to secure the payplied to the reservoir and a like amount to ment of laborers who shall have performed the pipe line. This acceptance is to be strict-work thereon, and materialmen who shall have ly in accordance with the contract between said company and the commission, and in no way shall it be construed to vary the contract." This acceptance is dated December 27, 1915. It is then asserted that the work was never completed, and that on February 8, 1916, and upon the request of plaintiff, by its president, the said order of acceptance was revoked. It is further alleged that, owing to faulty construction and disregard of specifications, the pipe line, stand pipe, and reservoir have developed leaks to such an extent as to cause a daily waste of more than 100,000 gallons. These averments are followed by some allegations regarding a claim of defendant against plaintiff for interest; but the prayer of the answer is for the dismissal of the action, with a judgment for costs. A reply was filed, joining issue upon the affirmative answer, and a trial was had by the court, without a jury, and thereafter the court filed its findings of fact and conclusions of law, and entered a judgment for plaintiff in accordance with the prayer of the complaint, and defendant appeals. furnished materials thereof, for any valid or uncom be deemed completed until the water commission shall have filed with the city recorder a statement, signed by a majority of them; but neither said statement, nor any acceptance of said work by said commission, shall prevent said city from thereafter making any claim for uncompleted or defective work when the same is discovered." "No payment shall be made in any event from the said 20 per cent. so reserved until said party of the second part shall have filed with the commission a certificate, signed by the engineer, stating that said period of 30 days has elapsed, and that no uncompleted or defective work has been discovered for which the water commission makes claim." urements and estimates of the engineer are "It is to be distinctly understood the measto be taken as final and conclusive evidence of the amount of work performed by the contractor, and shall be taken as the full measure of compensation to be received by the contractor. The estimate is to be based upon the schedule | veloped an excessive leakage from both resof price for the labor performed and material ervoir and standpipe, and that therefore the furnished under the contract and in accordance deviations were not trifling ones, but of suffiwith the annexed specifications, and whenever cient gravity to constitute a serious breach there may be any ambiguity therein, the engineer's instructions shall be considered explanatory and shall be of binding force." "In order to prevent disputes and litigation, the engineer shall in all cases be the referee to determine the amount, quality, and acceptability and fitness of the several kinds of work and material which are to be paid for under these specifications, and to decide upon all questions which may arise as to the fulfillment of said contract on the part of the contractor, and his decisions and determinations shall be final and conclusive." [2] It is urged by the defendant that S. A. Cobb, who was treated with by the contractor as the commission's engineer, was not, in fact, such official, and therefore had no authority to deviate from the plans and specifications, or to make certificate of the completion of the work, or otherwise bind the commission. For this reason, among others, defendant argues that there is a failure of proof upon material issues. The testimony upon this point is conflicting, but there is plenty of evidence to support the finding of the trial court that Cobb was the commission's engineer, and therefore such finding is conclusive. of the contract. However, the evidence is widely divergent upon this point, and the trial court's finding is to the effect that the deviations did not detract from a substantial performance of the contract. The trial court, not only had before it the testimony of the engineer as to the necessity of the changes, but also this clause in the contract: "In order to prevent disputes and litigation, the engineer shall in all cases be the referee to determine the amount, quality, and acceptability and fitness of the several kinds of work and material which are to be paid under these specifications, and to decide upon all questions which may arise as to the fulfillment of said contract on the part of the contractor, and his decisions and determination shall be final and conclusive." "West Linn Water Commission, West Linn, Oregon-Gentlemen: You are hereby notified that the Oregon Engineering & Construction Company has completed their contract, except some minor details, which, on account of the weather, it will be better to leave go until next spring or summer. To enable the commission to complete this work I would recommend that the sum of five hundred (500) dollars be withheld in the final settlement. Said money to be withheld as follows: Two hundred and fifty (250) dollars for completion and cleaning up reservoir and standpipe grounds. Two hundred and fifty (250) dollars for cleaning and rolling would recommend that a notice be filed with the ditches. In accordance with the foregoing, I city recorder, stating that they have completed the contract. "Yours truly, [3] The sufficiency of the findings is assailed, further, upon the additional grounds (1) that there were deviations from the specifications which were not authorized in writing by the engineer; (2) that no certificate of completion of the work, as required by the terms of the contract, has ever been filed; (3) that the commission was justified in withholding its written declaration that the work has been fully performed. Considering these items in their order, we note that the deviations complained of were two in number. It appears that in the construction of the reservoir and the standpipe there were two groups of expansion joints which were to be calked to prevent leakage. The specifications required that the joints in one group should be filled with asphalt of a certain grade. Cobb, the engineer, testifies that, after a few of the joints had been so filled, he discovered that the result was not satisfactory, and he ordered the contractor to fill the remainder of such joints partially with loose sand and pour in asphalt enough to complete the job. He did not give this order in writing, but the contractor obeyed. The other group of joints were to be lined with tin, and the space filled with asphalt. As to these, the engineer decided that a calking with oakum would be more effective, and he gave the contractor an oral order to that effect, which was likewise obeyed. It is not contended that the contractor profited in any way by these changes, or that there was any willful disregard of the S. A. Cobb." On December 27, 1915, the water commission held a meeting, the minutes of which disclose the following: "On motion the work of the Oregon Engineering & Construction Company, putting in the water system for the city, was accepted. After 30 days from date, payment to be made if no liens or claims are on the same, with the exception that $1,500 be held back for the completion of some details that cannot be done in winter weather; $750 of said $1,500 to be applied to the reservoir and a like amount to the pipe line. This acceptance is to be strictly in company and the commission, and in no way shall it be construed to vary the contract." accordance with the contract between said On the following day the engineer sent to |