Swank v. Elwert
Oregon Supreme Court
From Multnomah: Thomas O’Day, Judge. Statement by Mr. Justice Slater. The defendant C. P. Elwert, on November 16, 1905, leased his building in Portland to one Hutchinson, for the term of one year, for rooming house purposes, at a stipulated rental, payable monthly in advance,, on the 16th of each month.
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From Multnomah: Thomas O’Day, Judge. Statement by Mr. Justice Slater. The defendant C. P. Elwert, on November 16, 1905, leased his building in Portland to one Hutchinson, for the term of one year, for rooming house purposes, at a stipulated rental, payable monthly in advance,, on the 16th of each month. The lease contained a clause to the effect that the lessor should “hold the furniture as a lien for the rent,” which was not to be removed from the building during the term of the lease until all rents were paid; that the furniture should not be sold without the consent in writing of the…
1DissentJustice King
delivered the following dissenting opinion.
I dissent from the views announced, so far as they hold that the amount of the lien may be shown without pleading it as a partial defense. It is manifest that the matter pleaded in this case was intended as a complete defense. In Webb v. Nickerson, 11 Or. 382, 385 (4 Pac. 1126), Mr. Justice Thayer, speaking for the court, says: “At common law every plea must go to the whole cause of action and be an entire answer thereto on the record. This was a fundamental principle, and it prevails under the Code, except that matter may be set up by way of answer…
2Cases cited11 opinions
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- Kane v. McCownSupreme Court of Missouri · 1874
- Buchner v. Chicago, Milwaukee & Northwestern Railway Co.Wisconsin Supreme Court · 1884
- Springer v. JenkinsOregon Supreme Court · 1906
- J. I. Case Threshing Machine Co. v. CampbellOregon Supreme Court · 1887
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