Becker v. McKenzie

• Decision Date: 01 December 1914
• Parties: BECKER v. MCKENZIE.
• Court: Oregon Supreme Court

144 P. 434

73 Or. 313

BECKER v. MCKENZIE.

Supreme Court of Oregon

December 1, 1914

In Banc.

Appeal from Circuit Court, Union County; J. W. Knowles, Judge.

Action by P. M. Becker against D. R. McKenzie. On January 31, 1913 plaintiff executed to defendant a chattel mortgage on 86 sacks of timothy seed. The mortgage fell due on Sunday, March 30th, and on the morning of the following day defendant demanded his money, and plaintiff started out to raise it. During plaintiff's absence, defendant came with men and teams and took possession of the seed and carted it away plaintiff arriving just as defendant was taking away the last load. Plaintiff, on April 11th following, filed an action of trover and conversion for the value of the mortgaged property, less the mortgage debt, in which defendant pleaded that the property had unreasonably depreciated in value, and that plaintiff had attempted to sell or dispose of part of the mortgaged property. From a judgment for plaintiff for the value of the seed, less the mortgage debt, defendant appeals. Affirmed.

Turner Oliver, of La Grande, for appellant. R. J. Green and Eugene Ashwill, both of La Grande, for respondent.

EAKIN J.

The assignments of error relate to the refusal of the court to give certain requested instructions, and in giving certain other instructions. The contest grew out of the question whether or not the plaintiff had sold or disposed of part of the seed, but this seems to have been rather a suspicion than a fact. The defendant testified that he knew that plaintiff had been trying to dispose of the seed. Plaintiff testified that there were 84 sacks of the seed and 2 half sacks in all.

Defendant requested instructions to the effect that he did not actually sell the seed until after the note became due, of which the plaintiff cannot complain. If the property was prematurely taken by the defendant, it was a wrongful taking and a conversion of the timothy seed, for which trover lies, and the subsequent maturing of the mortgage lien did not make his possession rightful or change the character of the conversion.

When defendant was sued in trover, he could only plead the amount of the note and mortgage in mitigation of the damages, and could not justify the conversion. In such a case the plaintiff may sue in trover for the conversion, and the defendant may plead the amount due on the note and mortgage in mitigation of the damages, which was done...