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 which constitutes only a partial defense, but in the latter case it must be pleaded as a partial defense, and not assume to answer the entire cause of action. Fitzsimmons v. Fire Insurance Co., 18 Wis. 246 (86 Am. Dec. 761.)” It can make no difference whether you call it “a plea in pro tconto,” a partial defense, or a defense in mitigation of damages, the effect is .the same. Nor do I agree with the statement to the effect that the word “mitigation” is only proper in the class of cases enumerated in the majority opinion. This expression appears to be in common use in the class of cases under consideration. It is so employed in 13 Cyc. 68, 69, and in some of the authorities there cited; also in United States v. Ordway (C. C.) 30 Fed. 30, 32, in which Mr. Justice Deady had under consideration this character of defense, where he held such plea necessary, and in Morrison v. Crawford, 7 Or. 472, 476, as well as in Springer v. Jenkins, the case criticised. I regard the effect of the conclusion reached by the majority on this point as inharmonious with Section 73, B. & C. Comp., and in conflict with the rule enunciated on the subject in the case from which the above excerpt is taken, and amounts to the overruling on this point of Case Thresh. Mach. Co. v. Campbell, 14 Or. 460, 469 (13 Pac. 324), and Springer v. Jenkins, 47 Or. 502 (84 Pac. 479.) *505See also Bergman v. Inman, 43 Or. 456, 464 (72 Pac. 1086: 73 Pac. 341: 99 Am. St. Rep. 771), where this court cites with approval Pomeroy’s Code Rem. (3 ed.), holding such plea necessary.
It will not do to say that the case of Springer v. Jenkins was determined upon another feature, for it appears to be the second point considered, and one of the two principal questions there before the court, but, in view of the possibility of a new trial another matter was also passed upon. If it may be held to be dicta, which I do not concede, which point determined is entitled to that classification? I think clearly that the declarations upon the subject here involved cannot be classed as dicta, for, as said by the United States Supreme Court in Fla. Cent. Ry. Co. v. Schutte, 103 U. S. 118, 143 (26 L. Ed. 327) in referring to a point decided by the Florida Supreme Court: “The point was directly made by the pleadings and as directly passed on by the court. Although the bill in the case was finally dismissed because it was not proved that any of the state bonds had been sold, the decision was in no just sense dictum. It cannot be said that a case is not authority on one point because, although that point was properly presented and decided in the regular course of the consideration of the cause, something else was found in the end which disposed of the whole matter. Here the precise question was properly presented, fully argued and elaborately considered in the opinion. The decision on this question was as much a part of the judgment of the court as was that on any other of the several matters on which the case as a whole depended.” See, also, Kirby v. Boyette, 118, N. C. 244, 254 (24 S. E. 18) ; Buchner v. C., M. & N. W. Ry. Co., 60 Wis. 264 (19 N. W. 56) ; Kane v. McCown, 55 Mo. 181, 199; Ocean Beach Ass’n v. Brinley, 34 N. J. Eq. 438.