Criticism is directed to the following italicized portion of the opinion wherein it was stated: "We can determine this case only under the issues as made in the pleadings and,since defendant saw fit to allege default in payment alone asground for the repossession of the car, we confine ourselves tosuch issue."
We agree that under a general denial the defendant had the right to attack the title of the plaintiff or his *Page 208 right to possession of the automobile by offering in evidence anything which would tend to refute the allegations of ownership or the right to possession. However, in the instant case, default in payment alone was alleged as a ground for repossession of the car and it is conceded in the brief of appellant that such was the only reason assigned when the car was repossessed. We are firmly of the opinion that, in reviewing a case on appeal, we should confine ourselves to the theory upon which it was tried in the lower court. In the brief upon petition for rehearing, counsel for defendant states that his only purpose in alleging default in payment and a balance due under the conditional sales contract was to afford a basis for mitigation of compensatory damages: Barber v. Motor Investment Co., 136 Or. 361 (298 P. 216). If it was the purpose to plead a partial defense, it should have been so alleged. As stated in 49 C.J. 209, "A partial defense when not pleaded as such is to be treated as a complete defense."
This case was given careful consideration on original hearing and we can see no reason for disturbing the judgment of the lower court. The verdict was large but we are not prepared to say that it indicated passion or prejudice on the part of the jury.
The petition for rehearing will be denied.
BEAN, C.J., BROWN and CAMPBELL, JJ., concur. *Page 209