Dissenting. — I regret that I am not able to agree with the opinion of the majority of the court. The complaint not having been demurred to, should be construed liberally in favor of the plaintiff. Every reasonable intendment should be invoked to sustain the complaint after verdict: Smith v. National Surety Co., 77 Or. 17 (149 Pac. 1040); Portland v. New England Casualty Co., 96 Or. 48 (169 Pac. 211); Weishaar v. Pendleton, 73 Or. 190 (144 Pac. 401); Minter v. Minter, 80 Or. 369 (157 Pac. 157); Winn v. Taylor, 98 Or. 556 (190 Pac. 342, 194 Pac. 857); Duby et al. v. Hicks, 105 Or. 27 (209 Pac. 156).
The provision in the contract of sale which entitled the defendant to retain the right of possession and property in the automobile was for the benefit of the defendant and could be waived by him: Section 8174, subd. 1, Or. L.; Endicott v. Digerness, 103 Or. 555 (205 Pac. 975). The demand before bringing an action in the nature of trover is not necessary whenever a conversion can be otherwise shown. As where the defendant exercises “acts of ownership; * * diversion of property from the special purposes for which it was received.” 28 Cyc. 2032, quoted in the opinion of Mr. Justice Burnett.
The complaint alleges that the automobile involved in this action was delivered to the defendant under an agreement on the part of the defendant to try to sell the same and alleges that instead of selling it, the defendant had appropriated it to his own use and had continued to use it as his own property for a period of over nine months. This conduct on the part of the defendant was not only exercising ownership, but was also a diversion of the property from the special purposes for which it was received by him.
*463It may well be considered that the defendant by his answer supplied the omitted allegation of demand by alleging facts establishing that a demand would have been futile. The law does not require a futile or vain thing to be done: Turner v. Corbett, 9 Or. 79; Perrera v. Parke, 19 Or. 141 (23 Pac. 883); Catlin v. Jones, 48 Or. 158 (85 Pac. 515); Brown v. Lewis, 50 Or. 358 (92 Pac. 1058); Brown v. Truax, 58 Or. 572 (115 Pac. 597); Treadgold v. Willard, 81 Or. 658 (160 Pac. 803); Siverson v. Clanton, 88 Or. 261 (170 Pac. 933, 171 Pac. 1051); McLemore v. Western Union Tel. Co., 88 Or. 228 (171 Pac. 390, 1049); Hornefius v. Wilkinson, 51 Or. 45 (93 Pac. 474); Utah-ldaho Sugar Co. v. Lewis, 95 Or. 224 (187 Pac. 590); American Nat. Bank v. Kerley, 109 Or. 155, 206 (220 Pac. 116); Overturff v. Carrell, 109 Or. 326 (219 Pac. 1081).
The late Mr. Justice McCourt wrote an opinion, which in part is adopted and is as follows:
“At the argument had upon rehearing of the cause, counsel for the defendant made the further point that inasmuch as it appears from the complaint that the defendant acquired possession of the property rightfully, it was essential to a recovery by plaintiff, that he allege and prove a demand for the property, and the refusal of the defendant to deliver the same in response to such demand.
“As above pointed out, the complaint expressly alleged that the defendant, immediately following the delivery of the property to him, commenced to use the same as his own, and continuously thereafter for over nine months prior to the commencement of the action, continued to so use the property, and to exercise dominion over it, inconsistent with the right of plaintiff, and in direct conflict with the terms of the contract of bailment under which he obtained posses*464sion of the automobile. The purpose of alleging and proving a demand by the plaintiff and a refusal by the defendant, to deliver the property, involved in cases like the instant case, is to show a conversion and it is the generally accepted rule that such demand and refusal are unnecessary if the acts with which the defendant is charged in the complaint amount to a conversion regardless of whether or not a demand is made: 26 R. C. L. 1122. As said by Mr. Justice Harris in Daniel v. Foster & Kleiser Co., 95 Or. 502 (187 Pac. 627):
“ ‘Where a conversion has actually occurred there is no necessity for alleging and proving a demand and refusal.’
“The facts set forth in the complaint charged a conversion, without an averment of demand and refusal.
“At the trial the contest between the parties was confined to a determination of the conditions upon which the plaintiff surrendered possession of the automobile to defendant on July 20, 1920. All the other material facts relating to the respective rights of the parties were admitted. Plaintiff testified to the effect that, a few days prior to July 20, 1920, he had taken the automobile to defendant’s garage and left it there for the purpose of having a spring repaired. Plaintiff was out of work at that time and he concluded that he likely would be unable to pay the balance due upon the purchase price of the automobile, and accordingly he returned to defendant’s place of business on July 20th, and inquired of defendant, whether he could sell the automobile for plaintiff, and at the same time asked defendant what he estimated the automobile would sell for. Defendant replied that the automobile ought to sell for $1,650. Plaintiff then proposed that defendant take the automobile *465and place it upon display in defendant’s salesroom, and sell it for $1,650, or the best price he conld secure for it, and apply the proceeds of the sale, so far as necessary, in satisfaction of the balance of the purchase price due upon the automobile, and pay the remainder to plaintiff. In answer to plaintiff’s proposal defendant stated that he would be willing to take the automobile upon the terms mentioned by plaintiff, and endeavor to sell the same, provided the bank with which he had deposited the conditional sales contract would consent to the arrangement suggested by plaintiff. Defendant then went to the bank for the avowed purpose of consulting the officers of the bank relative to the matter. In a short time defendant returned and stated that he would undertake to make the sale on the terms proposed by plaintiff, and the latter, relying upon the agreement thus made, thereupon left the automobile with defendant and relinquished his right to possession of the same. At this time plaintiff had failed to make the installment payment upon the purchase price that had fallen due in each of the months of May, June, and July; but defendant had not made any demand for possession of the automobile or taken any action to terminate or forfeit plaintiff’s rights therein.
“Defendant, in refutation of plaintiff’s evidence, testified in effect that when plaintiff came to defendant’s place of business on July 20th, defendant called the attention of plaintiff to his default in the payment of three overdue installments upon the price of the automobile, and in response thereto plaintiff declared that he was unable to make the payments; that thereupon, pursuant to the option given him by the conditional sales contract between them, defendant required plaintiff to leave the automobile in the possession of defendant; that plaintiff acquiesced *466in the demand of the defendant, and then and there relinquished all his right to the automobile; that thereupon defendant voluntarily informed plaintiff that he would endeavor to sell the automobile, and if he succeeded in making a sale for more than the balance of the unpaid purchase price he would pay the excess to plaintiff; he further stated that he had tried to sell the automobile, but had been' unable to do so. Defendant testified further that having retaken possession of the property, he elected to credit plaintiff with all sums theretofore paid as rental and for use of the automobile, and for liquidated damages, and thereby extinguish plaintiff’s property therein, under the option, so to do, given defendant by the terms of the contract.
“Defendant admitted upon the trial that after July 20th, he did not recognize any right or title to the automobile in plaintiff and that immediately after that date he commenced to use the automobile and that continuouslv thereafter up to the time of the trial, he had used it and treated it as his own.
“It is therefore clear that the opposing claims of the parties were each supported by material evidence The weight and probative force of that evidence was for the jury. Manifestly, the evidence in support of plaintiff’s case was not subject to the objection urged by the defendant in his motion for nonsuit, to wit; that it failed to show any consideration for the agreement relied upon by the plaintiff.
“It follows that the court did not err in denying defendant’s motion for nonsuit, unless a further objection that is presented by the record required a contrary ruling. The objection referred to, raises the question whether the vendee entitled to possession of personal property under a conditional sales *467contract, reserving title in the vendor until the price is paid, has any property in the subject matter of the sale after default in making the deferred payments has occurred, and before a forfeiture has been declared by the vendor, that he can assign or transfer, or in respect to which he can contract particularly with the vendor.
“The rule is firmly established, that before he has made default in meeting the deferred payments on the purchase price, the vendee in such a contract, who has paid part of the purchase price, has a special property in the subject matter of the sale and an interest therein which is capable of transfer, so as to pass to his transferee his inchoate interest, and enable the latter to perform the condition and perfect his title: 24 R. C. L. 498; Christenson v. Nelson, 38 Or. 473, 477 (63 Pac. 648); Pelton Water Wheel Co. v. Oregon Iron Co., 87 Or. 248, 253 (170 Pac. 317); Dame v. Hansen & Co., 212 Mass. 124 (98 N. E. 589, Ann. Cas. 1913C, 329, L. R. A. (N. S.) 873, and cases digested in note appended thereto).
“It is equally well settled that the property vested in such a vendee before default upon his part entitles him to sue, not only third persons, but the vendor as well, for conversion or injury to the property, and in such case, he may, as a general rule, if the wrongdoer is a third person, recover the full value of the property, and if the wrongdoer is the vendor, he may recover the value of the property, less the unpaid portion of the purchase price: 24 R. C. L. 496; Willis-ton on Sales (2 ed.), § 383; Reinkey v. Findley Elec. Co., 147 Minn. 161 (180 N. W. 238); Carwell v. Weaver, 54 Cal. App. 734 (202 Pac. 897); Clark v. Clement, 75 Vt. 417 (56 Atl. 94); Roberson v. Withers, (Tex. Civ.), 152 S. W. 1160; Roper v. Faber, 8 Ga. App. 178 (68 S. E. 883).
*468“Provisions in a conditional sales contract that the vendor may, on default of the vendee, declare the contract void and take possession of the property, are inserted for the purpose of providing security to the vendor for the payment of the purchase price: Williston on Sales (2 ed.), § 579. And where such provisions are not self-executing but in terms require, as here, that as a condition precedent to their exercise, the vendor shall make known his election to retake the property and forfeit the rights of the vendee in the subject matter of the contract by notice or demand, the mere omission of the vendee to pay the price or perform other acts agreed upon at the times stipulated, does not operate as a forfeiture of all his rights. Even after maturity, and before the vendor has exercised his right to declare a forfeiture, the vendee may still pay the balance of the purchase price or perform the other stipulated acts and retain the property which he received under the contract: 35 Cyc. 700, 701; Mechem on Sales, § 606; Sunny South Lbr. Co. v. Neimeyer Lbr. Co., 63 Ark. 268, 276 (38 S. W. 902); Leaf v. Reynolds, 34 Idaho, 643 (203 Pac. 458); Pease v. Teller Corp., 22 Idaho, 807, 817 (128 Pac. 981); Wheeler & Wilson Mfg. Co. v. Teetzloff, 53 Wis. 211 (10 N. W. 155); Vaughn v. McFayden, 110 Mich. 234 (68 N. W. 135).
“The remedies afforded by such provisions are given for the benefit of the vendor and he may waive ‘them. Epplatt v. Empire Inv. Co., Inc., 99 Or. 533, 541 (194 Pac. 461, 700), involved a contract containing., a forfeiture provision which might be exercised at the option of the vendor. Mr. Justice Harris, speaking for the court in that case, said:
it ‘ppg contract does not by force of its own terms automatically work a forfeiture upon failure to pay an installment, but it merely gives the defendant the *469right to elect that it will declare a forfeiture; and hence, in order to have produced a forfeiture, the defendant must have exercised its right by electing to declare a forfeiture. The right to declare a forfeiture can, when arising out of contracts like the one presented here, be exercised either at or after the maturity of any installment; but, whether exercised at or after maturity, the right does not exist and cannot be lawfully exercised unless reasonable notice has been previously given * * . Since contracts like the one here are not self-executing, the law by implication introduces into such contracts a provision that the right of forfeiture shall be exercised only after first giving notice for a reasonable period of time, or rather, speaking figuratively, the invisible and omnipresent hand of the law writes such a provision into the contract; and, therefore, the right to forfeit cannot be fully exercised unless: (1) the vendor gives reasonable notice; and (2) the purchaser failed to pay within the time fixed by the notice.’
“In Mechem on Sales, Section 609, the Author says:
“ ‘The law has no interests of its own to subserve in insisting upon forfeitures or the other results of default. The remedies it gives are for the benefit of the vendor, and he may waive them if he will. He may do this, moreover, either expressly or by implication, and as the results of default more often work hardships to the buyer than to the seller, the law looks with complacence at least upon those acts of the vendor which may fairly be construed as indicative of his intention not to insist upon a forfeiture of the buyer’s rights. If, therefore, the seller, notwithstanding the default, does not avail himself of his appropriate remedy, but so acts as to reasonably warrant the inference that he regards the buyer’s rights as still subsisting, he will be deemed to have waived the default, and he will not be at liberty to declare a forfeiture until he has in some way put the buyer, whom he has thus misled, in the attitude of a fresh default.’
*470“In the instant ease, it is undisputed that an installment upon the purchase price of the automobile, became due upon the seventh day of each of the months of May, June and July, 1920; that plaintiff made default in the payment of each of the installments mentioned; that defendant did not, prior to July 20, 1920, demand possession of the automobile or declare a forfeiture upon account of any such default or otherwise, and in the interval plaintiff continued in the use and possession of the automobile as though no default had occurred.
“In that situation, no declaration of forfeiture having been made by defendant, plaintiff was entitled to the possession of the automobile. Burdick v. Tum-a-Lum Lbr. Co., 91 Or. 417, 423 (179 Pac. 245). And it is established by the authorities above cited that he was also entitled to tender and pay to the defendant the balance due upon the contract and preserve his rights in the property as effectively as though no default had occurred. And it may be that by offering to pay the amount of the overdue installments, prior to any such declaration of forfeiture, he would have become fully reinstated in his contract rights, but whether that would be so or not, we need not decide.
“Obviously the rights and property above described and belonging to plaintiff, were the subject of contract between him and defendant. Clearly an agreement by the latter to pay a stipulated price for the relinquishment of those rights would have been valid and enforceable. So the agreement set up in plaintiff’s complaint, whereby defendant undertook to dispose of plaintiff’s rights in the property as well as his own, followed by surrender of possession of the automobile to defendant for the purpose of promoting the contemplated sale, constituted a contract which *471the parties under the circumstances were competent to make, and one which was supported by a sufficient consideration.
“If as a fact, and that was a question for the jury, the agreement mentioned was entered into as alleged by plaintiff, it created a situation inconsistent with the termination of plaintiff’s rights involved therein, and had the effect of suspending, defendant’s fight to declare a forfeiture until the later agreement was terminated.
“As above stated, the question, whether the agreement relied upon by the plaintiff was entered into by the parties, was one for the jury. The evidence submitted to establish that agreement as well as the evidence offered to show that no such agreement was made, was submitted to the jury under proper instruction and its determination in respect thereto is binding, both upon the parties and upon this court.”
In regard to the effect of the admission by the plaintiff in his reply that the written contract for sale of the automobile set out as an exhibit to the answer was “the only contract ever entered into with reference to said car at any time by the plaintiff and the defendant,” it is sufficient to say that that question was not raised or submitted in the Circuit Court or in this court. Appellant relied on two alleged errors, and only two, namely: That the complaint did not state facts, and that there was not any evidence before the court sufficient to go to the jury tending to prove the agreement relied upon by the plaintiff. The admission in the reply not having-been taken advantage of by proper motion should be considered waived. Only the question that the complaint does not state facts, or the court is without jurisdiction, can be raised in this court for the first time. This court should confine its decisions to the *472questions raised by tbe appeal, excepting only tbe two instances where the sufficiency of tbe complaint and the jurisdiction of the court are challenged. The case was not disposed of by motion for judgment on the pleadings. The Circuit Court’s attention was not directed to the admission. Counsel for appellant did not raise it in this court. Questions not raised in the lower court will not be reviewed: Stoddard Lumber Co. v. Oregon-Wash. R. & N. Co., 84 Or. 399 (165 Pac. 363, 4 A. L. R. 1275); Marks v. First Nat. Bank, 84 Or. 601 (165 Pac. 673).
One other alleged error than the two mentioned above was assigned, but not insisted on in this court and is not material or relevant to the matters discussed in this opinion.
The judgment should be affirmed.
Mr. Justice Bean concurs in this dissent.