namely, on September 9, 1895, he filed on the lands as a homestead, obtained the usual certificate, and ever since has intended, and now intends, to make final proof and acquire title thereto; that a contest of plaintiff's entry by the defendant was determined by the secretary of the interior in favor of the plaintiff; and that his homestead entry is valid and intact. For the purpose of converting the complaint into one under the statute, the plaintiff proceeds: "(6) That on or about the 28th day of May, 1895, and while plaintiff was so possessed and entitled to the possession of said lands and premises, the defendant did, on or about the day and year aforesaid, without right or title, enter into and upon a part of the said lands, to wit, the northwest quarter of the northwest quarter (N. W. 4 of N. W. 4) of section thirty-five (35), township one (1) north, of range twenty-six (26) east of the Montana principal meridian, containing forty (40) acres, and ousted and ejected the plaintiff therefrom, and ever since that day | has, by force and by menaces and threats of violence, unlawfully withheld and still withholds the possession thereof from the plaintiff, to his damage in the sum of five hundred dollars ($500). * * * (8) That on or about the 22d day of October, 1898, the plaintiff demanded of the defendant, in writing duly served upon the defendant, at the county of Yellowstone, the possession of said lands so unlawfully and forcibly held by the defendant, and that the defendant should remove himself and his family and all of his personal effects and property from said lands, and also to not remove from said lands and premises any tenements, erections, buildings, fences, or other improvements situate thereon or attached thereto; but to vacate or deliver possession of said lands or premises, or the said improvements, erections, buildings, and fences, the defendant has ever refused and neglected, but still continues to so forcibly, unlawfully, and wrongfully hold the said lands and premises." By his answer (the negatives pregnant being first rejected) the defendant denies that the plaintiff entered upon or took possession of the lands; denies that it was unoccupied or unappropriated; denies that the plaintiff ever erected a tent or house thereon or that he resides thereon; denies the averments touching cultivation and the plaintiff's intent to occupy the land as a homestead; denies the validity of the decision of the secretary of the interior and the subordinate federal officers in favor of the plaintiff; denies the allegations of the eighth paragraph; "denies that said plaintiff is entitled to the possession of the said lands so described, or to any part thereof, or to the improvements thereon; and denies that said plaintiff has any right, title, or interest in or to said lands described in said complaint, or ever had the possession thereof"; and alleges that the defendant himself is entitled to the possession of the lands and improvements. On these pleadings, judgment in favor of the 69 P.-43

plaintiff was entered upon the ground that the answer neither raised an issue nor set up an affirmative defense.

Section 2081 of the Code of Civil Procedure reads as follows: "Every person is guilty of a forcible detainer who either: (1) By force or by menaces and threats of violence, unlawfully holds and keeps the possession of any real property, or mining claim, whether the same was acquired peaceably or otherwise; or (2) who, in the night time, or during the absence of the occupant of any lands or mining claim, unlawfully enters upon real property, and who, after demand made for the surrender thereof, for the period of five days refuses to surrender the same to such former occupant. The occupant of real property or mining claim, within the meaning of this subdivision, is one who, within five days preceding such unlawful entry, was in the peaceable and undisputed possession of such lands." The plaintiff contends that the proceedings were instituted under subdivision 1 of that section, while the defendant insists that the proceedings, in so far as they can properly be regarded as founded upon the forcible entry and detainer statute, manifestly rest upon the provisions of subdivision 2 of that section. If the proceedings were instituted under either of the subdivisions, there must be applied to them the provisions of section 2092 of the Code of Civil Procedure: "Sec. 2092. On the trial of any proceedings for any forcible entry or forcible detainer, the plaintiff shall only be required to show, in addition to the forcible entry or forcible detainer complained of, that he was peaceably in the actual possession at the time of the forcible entry, or, was entitled to the possession at the time of the forcible detainer. The defendant may show in his defense, that he or his ancestors, or those whose interest in such premises he claims, have been in the quiet possession thereof for the space of one whole year together next before the commencement of the proceedings, and that his interest therein is not then ended or determined, and such showing is a bar to the proceedings." Relying upon the provisions of subdivision 2 of section 2081, the defendant argues that the complaint is fatally defective because it omits to state that, the plaintiff was, within five days preceding the unlawful entry, "in the peaceable and undisputed possession" of the lands. For such contention we find no warrant. Section 2080 specifies two conditions, relations, or series of acts, either of which is declared to constitute a forcible entry. Section 2081 likewise specifies the acts which shall render the perpetrator guilty of a forcible detainer. Section 2092 prescribes the proof which must be adduced in support of an action for a forcible entry, and also the proof required to sustain an action for forcible detainer; each wrong or cause of action having been described and defined by sections 2080 and 2081. If the object of the action is to obtain the remedy

for a forcible entry, the proof required by section 2092 is twofold: (1) Proof of the forcible entry as defined in section 2080; and (2) proof that the plaintiff "was peaceably in the actual possession at the time of the forcible entry." If the purpose of the action is to obtain relief from a forcible detainer, proof must be made under section 2092 (1) of the forcible detainer, as defined in section 2081; and (2) of the plaintiff's right to the possession at the time of the forcible detainer. Hence the only provisions of the statute which demand allegations or proof in respect of the plaintiff's actual or peaceable possession are those which have to do with actions for forcible entries and those applicable to actions for forcible detainers, as defined by subdivision 2 of section 2081. The averments with respect to an actual ouster are not sufficient as a statement of a forcible entry within the meaning of section 2080, the plaintiff distinctly disavows such purpose, the defendant does not contend that the action is for a forcible entry, and we think it cannot be so regarded. Unless, therefore, such requirement is embraced within section 2081, the plaintiff need not allege or prove actual or peaceable possession. It is to be remembered that the section last mentioned does not prescribe the proof required to maintain an action, but merely defines the acts which shall constitute a forcible detainer. The definition given by subdivision 1 does not include the element of possession at any time by a plaintiff. If a defendant has committed the acts there described, he is guilty of a forcible detainer, even if the plaintiff has never been in possession of the land detained. The acts which subdivision 2 denounces as a forcible detainer must (except the refusal to surrender the property) be committed "in the night time, or during the absence of the occupant"; and, to avoid uncertainty as to the legal significance of the word "occupant," that word is defined as describing "one who, within five days preceding such unlawful entry, was in the peaceable and undisputed possession of such lands." The definition is confined to the one word, and is further expressly restricted to its use "within the meaning of this subdivision," that is, subdivision 2. It therefore seems quite clear that a forcible detainer (except as to the element of refusal to surrender the property), under subdivision 2, must be committed either "in the night time," or "during the absence of" "one who, within five days preceding such unlawful entry, was in the peaceable and undisputed possession of such lands." The complaint being silent with respect to an entry in the nighttime or during the absence of the occupant, none of the provisions of subdivision 2 are applicable. We have already held that none of the provisions of the forcible entry section are pertinent. The conclusion is that this is an action for a forcible detainer under the provisions of subdivision 1 of section 2081; that no allegation of the plaintiff's ac

tual, peaceable, or undisputed possession is essential; and that in this respect the complaint is good.

Further objection is made that the complaint is bad because, as the defendant asserts, it shows upon its face that he had been in possession of the lands for a longer period than one year next before the commencement of the proceedings; and he invokes the last part of section 2092, supra. Suffice it to say that we need not pause to consider what would be the result if from the complaint it appeared that the defendant had been in "quiet possession thereof for the space of one whole year together next before the commencement of the proceedings, and that his interest therein is not then ended or determined." Nowhere in the complaint does it appear that the defendant was ever in the quiet possession.

Another objection to the complaint urged in this court by the defendant is that it is fatally defective because, there is a want of any allegation that the plaintiff was entitled to the possession of the land at the time of the forcible detainer. We have already observed that in an action for a forcible detainer the evidence demanded by section 2092 must establish two facts: First, a forcible detainer as defined in section 2081; secondly, that the plaintiff was entitled to the possession at the time of the forcible detainer. An allegation that a party is entitled to possession is usually a mere conclusion of law, but in actions for forcible detainer such an allegation is sufficient, without setting out the facts upon which it is based. This difference results from the peculiar nature of the action and of the issues that can be presented. Such a statement, or its equivalent in the form of facts averred, is essential. This the plaintiff admits, but argues that the complaint, taken as a whole, discloses his right to possession at the time of the forcible detainer. The question thus raised is one of some difficulty and doubt, and, as the judgment must be reversed for the reason presently to be stated, we prefer to reserve the point. Upon remand the plaintiff will doubtless be afforded an opportunity to amend the complaint. Under these circumstances, a determination of the point seems to be unnecessary.

As we have already decided, the complaint attempts, at least, to state a cause of action under subdivision 1 of section 2081 of the Code of Civil Procedure. One of the essential allegations of such a complaint is that the defendant by force, or by menaces and threats of violence, unlawfully holds and keeps the possession of the real estate. In this particular we think the complaint not open to objection. The other essential allegation is that the plaintiff was entitled to the possession at the time of the forcible detainer. We assume, for present purposes, the sufficiency of the complaint in this regard. Does the answer contain a denial of either

of these vital allegations? If it does, an issue was framed and tendered, and the judgment is erroneous. Examination of the answer discloses that it contains an express denial of the allegations made in the eighth paragraph of the complaint, among which is one charging the defendant with the forcible detainer; hence this averment is traversed. Upon the other essential allegation, which, we assume, appears in the complaint, an issue is framed; for in his answer the defendant (referring, of course, to the time when the complaint was filed) expressly "denies that said plaintiff is entitled to the possession of the said lands so described, or to any part thereof, or to the improvements thereon, and denies that said plaintiff has any right, title, or interest in or to said lands described in said complaint," and, by way of argumentative denial, asserts that he himself is entitled to the possession. Counsel for the plaintiff suggests that, because some of the denials are pregnant with admissions of the essential allegations of the complaint, the express denials are without force; but this cannot be correct, for admissions arising by mere implication from negatives pregnant are overcome and nullified by express denials. In the law of pleading, admission by failure expressly to controvert is implied admission inferred from silence; a negation which falls short of a good denial is silence (or equivalent to silence) pregnant with implied admission. Express denial of an allegation so impliedly admitted destroys the admission inferred from silence or an imperfect negation, and raises an issue. It therefore appears that the essential allegations of the complaint are traversed by the denials contained in the answer.

Holding, as we do, that the answer states, by way of denial, facts sufficient to constitute a defense, it follows that the judgment is erroneous and must be reversed. The judgment is therefore reversed, and the cause remanded. Remittitur may issue forthwith. Reversed and remanded.

BRANTLY, C. J., and MILBURN, J., con

cur.

(41 Or. 562)

SALEM LIGHT & TRACTION CO. v. ANSON.

(Supreme Court of Oregon. July 28, 1902.) REFERENCE-WHEN ALLOWED-TROVER-EVIDENCE-AGENT-COLLECTION OF MONEY. 1. Under Hill's Ann. Laws Or. § 222, subd. 1. providing that the court may upon the application of either party, or upon its own motion, direct a reference, “when a trial of an issue of fact shall require the examination of a long account on either side," either an action in tort or contract may be referred, so long as there is a long account involved.

2. Where the conclusion can be fairly drawn from facts disclosed by affidavit, or upon the face of the pleadings, that so many separate and distinct items will be litigated or examined that a jury cannot keep the evidence in mind in regard to each item, the case may be referred.

3. Where there is a conflict in the evidence, or there is reasonable ground for controversy, as to whether the issue involves the examination of such an account, and the court below has decided to refer the cause, its conclusion will not ordinarily be disturbed on appeal.

4. Where an agent's contract of employment requires him to turn over to his principal the identical moneys collected for the principal, trover may be maintained by the principal against him for the conversion of moneys collected.

5. In trover by a corporation for moneys collected by an agent, it is not necessary to describe any particular money converted, if the aggregate of the conversion be given.

6. Hill's Ann. Laws Or. § 691, subd. 5, permits evidence of the contents of a writing where the original consists of numerous accounts, which cannot be examined in court without great loss of time, and the evidence sought from them is only the general result of the whole. Held that, where the accounts to be examined to determine whether an agent had converted moneys were numerous, it was proper to allow an expert who had examined the books to testify as to the result of his investigations.

7. Where an expert testified as to the contents of plaintiff's books, that the books themselves were not offered is no ground for complaint on appeal; the record indicating that they were in court, and the failure to offer them not having been made a ground of objection to the expert's testimony.

8. On appeal the court can only examine the testimony for the purpose of ascertaining whether there was any competent evidence tending to support the conclusions of the trial judge.

9. In trover for the conversion of moneys collected by defendant as plaintiff's agent, the evidence showed that the books of account were kept under the direction of the defendant; that they indicated that certain moneys due the plaintiff were collected from the state and from a county, and not accounted for by him; and that two false entries had been made therein by the defendant's direction, crediting one account with large sums and charging the same to stores, when in fact no stores had been purchased. The defendant gave no evidence on the trial whatever, and did not undertake to explain any of these circumstances. or account for the false entries in the books. Held, that the evidence sustained a verdict for plaintiff.

Appeal from circuit court, Marion county; Geo. H. Burnett, Judge.

Action by the Salem Light & Traction Company against F. R. Anson. From a judgment for plaintiff, defendant appeals. Affirmed.

This is an action in trover for money alleged to have been collected by the defendant for the plaintiff and converted to his own use. The complaint alleges that the plaintiff is a corporation engaged in the conduct and operation of street railways and an electric light and power plant in the city of Salem; that from June 1, 1898, to October 20, 1899, the defendant was the managing agent of the plaintiff, and as such had the care and control of its properties, the collection of amounts due it, and the supervision of the keeping of its books of account; that between the dates named he received and collected for and on account of the plaintiff

6. See Evidence, vol. 20, Cent. Dig. § 557.

large sums of money due it for light furnished and other services rendered to the state of Oregon, Marion county, and divers persons, firms, and corporations, and wrongfully and unlawfully, and with intent to deprive the plaintiff thereof, appropriated and converted to his own use, of the moneys so collected and received, the sum of $3,387.18, to the plaintiff's damage in that amount; that the moneys so collected consisted of gold and silver coin of the United States and other current moneys, and, as the books of account with reference to the plaintiff's business were kept by and under the direction and control of the defendant, the plaintiff is unable to give a more specific description of the money converted by him. For a further and separate cause of action, it is alleged that in October, 1899, the plaintiff was the owner of a warrant issued by the city of Salem in payment of services rendered it, for $153.05, and another warrant issued by Marion county for services rendered it in the sum of $35, and that the defendant obtained possession of both of said warrants, and wrongfully converted the same to his own use, to the plaintiff's damage in the sum of $195. The answer admits the incorporation of the plaintiff; the defendant's employment as manager between the dates alleged in the complaint; that as such manager he collected large sums of money due from its patrons; but denies that he wrongfully or unlawfully or at all converted to his own use $3,387.18 thereof, or any other sum. The answer admits the conversion by defendant of the city and county warrants, as alleged in the complaint, but denies that it was wrongfully or unlawfully done. For a further and separate defense to the second cause of action, it is alleged that the defendant was the duly appointed managing agent of the plaintiff, and as such had authority to receive and collect all moneys due it for services rendered, and to pay out and disburse the same in payment of current obligations, and that, acting as such agent, he received the two warrants referred to, and converted the same into cash for the use and benefit of the plaintiff. A reply put in issue the new matter alleged in the answer, and upon motion of the plaintiff, over the objection and exception of the defendant, the court referred the cause to a referee to take and report the testimony; but thereafter, by stipulation of the parties, the defendant not waiving his objection to the order of reference, the cause was tried before the court without the intervention of a jury. From the testimony submitted, the court found, in substance: (1) That during July, 1898, the defendant, as manager and agent of the plaintiff, received from the state of Oregon $2,439.06, and from the city of Salem $799, on account of services rendered by plaintiff, and paid over and accounted for only $1,968.30 of the former sum, and $707.28 of the latter, leaving a balance of $562.48, which he

appropriated and converted to his own use; (2) that during the month of March, 1899, the defendant collected of divers and sundry persons, firms, and corporations $760 due the plaintiff for services rendered by it, and failed to account for any part of said sum, but, on the contrary, with intent to defraud and deceive the plaintiff, caused false entries to be made on its books, which were under his charge and control, to the effect that the said sums had been expended for stores purchased by him, when in fact no such purchases had been made; (3) that during the month of September, 1899, he collected and appropriated to his own use $2,050.55 due the plaintiff from divers persons, firms, and corporations, and caused a like false and fraudulent entry to be made in the books of the company; (4) that in October, 1899, the defendant collected from the city of Salem $153.05, and from Marion county $35, due the plaintiff, and fraudulently and unlawfully failed to account therefor, but appropriated and converted the same to his own use. As conclusions of law, the court found that, by reason of the wrongful acts aforesaid of the defendant, the plaintiff was damaged in the sum of $3,561.08, and entered judgment accordingly, from which defendant appeals.

Tilmon Ford and W. T. Slater, for appellant. Geo. G. Bingham, for respondent.

BEAN, J. (after stating the facts). It is first insisted that the court erred in referring the case to a referee. The statute provides that the court may, upon the application of either party, or upon its own motion, direct a reference "when the trial of an issue of fact shall require the examination of a long account on either side." Hill's Ann. Laws Or. § 222, subd. 1. This provision of the statute is not an infringement of the constitutional right to a trial by jury. Tribou v. Strowbridge, 7 Or. 156; Trummer v. Konrad, 32 Or. 54, 51 Pac. 447. Nor is any distinction made between an action on contract and one of tort, but either may be referred if it involves the examination of a long account. As to what constitutes such an account, within the meaning of the statute, has not been, and, in the nature of things, cannot be, exactly determined. Each case must depend upon its own facts. Mitchell v. Association, 38 Or. 503, 63 Pac. 881. Where, however, the conclusion can be fairly drawn from facts disclosed by affidavit, or upon the face of the pleadings, that so many separate and distinct items will be litigated or examined that a jury cannot keep the evidence in mind in regard to each item, the case may be referred; and where there is a conflict in the evidence, or there is reasonable ground for controversy, as to whether the issue involves the examination of such an account, and the court below has decided to refer the cause, its conclusion will not ordinarily be disturbed on appeal. It is only

when it clearly appears that no such account can be involved that an order of reference will be reversed. Welsh v. Darragh, 52 N. Y. 590. This case comes within the principle stated. It not only appeared upon the face of the pleadings, but from the affidavit of the manager of the plaintiff company, that the trial would necessarily involve the examination of the accounts of plaintiff's business from June 1, 1898, to October 20, 1899, and that it could not intelligently be done by a jury. There was no error, therefore, in the order of reference.

It is next contended that the plaintiff's remedy was by an action on contract, and not in trover, and hence the complaint does not state facts sufficient to constitute a cause of action. As a general rule, the mere failure of an agent to pay over or account for money collected for his principal will not sustain an action of conversion, because the agent is not bound to pay over the identical money received, and the transactions create nothing more than the relation of debtor and creditor between him and his principal. Royce v. Oakes, 20 R. I. 418, 39 Atl. 758, 39 L. R. A. 845; Hartman v. Hicks (Sup.) 59 N. Y. Supp. 529; Vandelle v. Rohan (Sup.) 73 N. Y. Supp. 285; Walter v. Bennett, 16 N. Y. 250; Borland v. Stokes (Pa.) 14 Atl. 61. But where the principal is entitled to receive, and the terms of the employment of the agent require him to pay over, the identical money received. an action of trover will lie for its conversion. Jackson v. Anderson, 4 Taunt. 24; Petit v. Bouju, 1 Mo. 49; Bunger v. Roddy, 70 Ind. 26; Donohue v. Henry, 4 E. D. Smith, 162; Farrand v. Hurlbut, 7 Minn. 477 (Gil. 383); Cotton v. Sharpstein (Wis.) 80 Am. Dec. 774; Express Co. v. Piatt, 51 Minn. 568, 53 N. W. 877. And such was the case here. The defendant was the agent and general manager of the plaintiff corporation, with power and authority to collect the moneys due it for services rendered. All the money so collected belonged to his principal. The title immediately vested in the plaintiff, and the defendant had no interest therein, and no authority to make any use thereof whatever. He was bound by the terms of his employment to pay the money over to the treasurer of the plaintiff corporation, and could not even use it for the payment of current expenses without the approval of his superior. The plaintiff, as a matter of right, therefore, was entitled to the identical money received by the defendant on its account, and any unlawful use or misapplication thereof constituted a conversion, for which an action of trover was an appropriate remedy. Mech. Cas. Ag. § 476; Henry v. Sowles (C. C.) 28 Fed. 521; Cotton v. Sharpstein, 14 Wis. 226, 80 Am. Dec. 774.

But it is said the complaint is insufficient because it does not describe with reasonable certainty the identical money alleged to have been converted by the defendant. In the nature of things, however, that was an impossi

bility. The complaint shows that the defendant was the trusted agent and manager of the plaintiff, with power and authority to collect all moneys due it, and during his term of service received and collected large sums, a part of which he failed to account for, but converted to his own use. It is impossible for the plaintiff to specify or describe any particular money converted, nor was it necessary to do so. The conversion consisted of distinct acts done by virtue of the confidential relations existing between the plaintiff and defendant. These separate acts may not be capable of either allegation or proof, but the aggregate result is, and that constitutes the conversion. No stricter rule, certainly, should be applied in an action by a principal against his agent for conversion of funds which came into his hands by virtue of his employment than would be required in a prosecution for the crime of embezzlement; and in the latter case a charge of embezzlement of a certain amount on a certain day will cover and admit evidence of a series of connected transactions, showing a continuing offense. State v. Reinhart, 26 Or. 466, 38 Pac. 822.

It is next contended that there was no competent evidence tending to support the findings of the trial court. The principal testimony was that of A. A. Cunningham, an expert accountant, who was the bookkeeper of the plaintiff during the defendant's service, and up to September 1, 1899, and who had made an examination of the books since that date. These books were kept under the supervision and direction of the defendant, and entries were made therein by his orders. Cunningham testified in detail as to the manner of keeping the books, their condition, the items of account contained and the entries made therein, and the result of his examination. His testimony was competent, under the familiar rule that where books, papers, and records are numerous, an expert may testify as to the result of his examination and investigation. Hill's Ann. Laws Or. § 691, subd. 5; State v. Reinhart, supra; 1 Greenl. Ev. (15th Ed.) § 93; 1 Jones, Ev. § 205; Railroad Corp. v. Dana, 1 Gray, 83; Hollingsworth v. State, 111 Ind. 289, 12 N. E. 490; State v. Findley, 101 Mo. 217, 14 S. W. 185. And it is no ground of complaint on this appeal that the books themselves were not offered or admitted in evidence. The record indicates that they were in court, and no objection was made to Cunningham's testimony because they were not offered in evidence, and therefore it cannot be urged here. Burton v. Driggs, 20 Wall. 125, 22 L. Ed. 299.

Finally it is said that, even if Cunningham's testimony is competent, it does not show that the defendant converted or appropriated to his own use any money belonging to plaintiff. We do not purpose entering upon a discussion of that question, because the weight and value of the evidence were for the trial court. We can only examine the testimony for the purpose of ascertaining whether