Albright v. Browne

• Decision Date: 23 February 1910
• Citation: 107 P. 458,55 Or. 599
• Parties: ALBRIGHT et al. v. BROWNE.
• Court: Oregon Supreme Court

107 P. 458

55 Or. 599

ALBRIGHT et al. v. BROWNE.

Supreme Court of Oregon

February 23, 1910

Appeal from Circuit Court, Josephine County; H.K. Hanna, Judge.

Action by E.M. Albright and others against Martin Browne. From a judgment of nonsuit, plaintiffs appeal. Affirmed.

This is an action to recover the possession of personal property, or its alleged value in case control thereof cannot be secured. The complaint is in the usual form, except that it does not aver any demand was made for the delivery of the specified goods. The answer denies each allegation of the complaint and avers that the defendant is the owner of the property so described and entitled to the immediate possession thereof. The reply puts in issue the allegations of new matter in the answer, and at the trial, the plaintiffs having introduced their evidence and rested, a judgment of nonsuit was given from which they appeal.

Robt. G. Smith and A.C. Hough, for appellants.

H.D Norton, for respondent.

MOORE C.J. (after stating the facts as above).

It appears from the bill of exceptions that the plaintiffs were the owners of eight quartz mining claims in Josephine county which they stipulated in writing to sell and convey to Charles H. Aldrich, who paid down $3,000, gave $13,500 April 1, 1906, and was to have made the final payment of $13,500 July 1st of the latter year, upon receipt of which the plaintiffs were to deliver to him a deed to the premises. The contract provided that time should be of the essence thereof that Aldrich should take immediate possession of the mining claims, and until final payment therefor would, in good faith, develop the premises, constantly employing for that purpose not less than four men; and that, upon his failure or the omission of any person or corporation claiming under him to compel with any condition of the agreement, all rights thereunder should be forfeited, including all tools, machinery, and equipment of every kind. Aldrich negotiated the purchase of the property for the Calumet & Oregon Mining Company, a corporation, which ceased developing the mines, and its officers, evidently anticipating a default in the final payment, caused the property in question to be removed from the premises June 7, 1906, and on behalf of their principal executed to the defendant herein a bill of sale for the goods. Albright, one of the plaintiffs, having visited the mining claims about June 10, 1906, and finding that less than the required number of men were employed thereat, declared a forfeiture of all right to the premises and claimed the personal property involved herein as the tools, machinery, and equipment specified in the contract. These goods had been left at the house of Peter Bour by the corporation, and, without its consent or that of the defendant, the plaintiffs returned the most valuable part of the tools, etc., to the mines. The defendant caused the remainder of the goods to be moved from Bour's house, and stored in a cabin owned by a Mr. Hunt. Thereafter the plaintiffs, obtaining Hunt's title to the building or securing some authority from him, placed a lock on the door. The...