Bergman v. Inman, Poulsen & Co.

• Decision Date: 06 July 1903
• Citation: 43 Or. 456,72 P. 1086
• Parties: BERGMAN v. INMAN, POULSEN & CO. et al.
• Court: Oregon Supreme Court

72 P. 1086

43 Or. 456

BERGMAN v. INMAN, POULSEN & CO. et al.

Supreme Court of Oregon

July 6, 1903

Appeal from Circuit Court, Multnomah County; M.C. George, Judge.

Action by C.O. Bergman against Inman, Poulsen & Co., a corporation and another. From a judgment for plaintiff, the defendant corporation appeals. Reversed.

H.M. Cake, for appellant.

Milton W. Smith and David Steward, for respondent.

BEAN J.

Under the statute of the state of Washington, every person performing labor upon or assisting in obtaining or securing saw logs has a lien thereon for such work or labor, and "any person who shall injure, impair, or destroy, or who shall render difficult, uncertain, or impossible of identification," any saw logs upon which there is a lien, "without the express consent of the person entitled to such lien, shall be liable to the lienholder for the damages to the amount secured by his lien which may be recovered by a civil action against such person." Hill's Ann.St. & Codes Wash. § 1694. The plaintiff and various other persons performed work and labor for one Makarainen, in that state, at divers times between the 1st of May and the 29th of September, 1892, in obtaining and securing some five million feet of saw logs. On October 1, 1892, they each filed a claim of lien with the auditor of the proper county, as required by law. On the 27th of the same month, plaintiff, to whom the other lienholders had duly assigned and transferred their claims, commenced an action in the superior court of Lewis county against Makarainen to foreclose these various liens. On March 9, 1893, a final judgment was rendered in his favor and against Makarainen for $2,858.75, decreeing a foreclosure of the liens, and that the logs therein described, amounting to about four million feet should be sold to satisfy the judgment. The logs were in the state of Washington when the action was begun, but while it was still pending the defendant, under an alleged purchase from Makarainen, took possession of and brought into this state about one and a half million feet thereof, which some months later were sawed and converted into lumber at its mill in Portland. After the defendant had taken possession of and removed the logs into this state, Makarainen assigned and transferred his account therefor to Fleckenstein & Mayer who, on the 26th of April, 1893, commenced an action against the defendant to recover the contract price thereof. Such action resulted in a judgment in their favor for the amount found due and owing thereon, which judgment, it is alleged, has been fully paid and satisfied. On the 26th of January, 1899, this action was brought against the defendant to recover the damages alleged to have been sustained by plaintiff on account of its violation of the statute of Washington in removing the logs from that state and rendering them impossible of identification, without the consent of the plaintiff lienholder. The several provisions of the statute of Washington with reference to loggers' liens and the methods of procedure thereunder are set out in full in the complaint. The verdict and judgment being in favor of plaintiff, the defendant appeals, assigning as error (1) the admission in evidence of the judgment roll in the action brought by the plaintiff against Makarainen in the superior court of Lewis county, Wash., to foreclose the loggers' liens against the property in controversy; (2) the refusal of the trial court to instruct the jury that the statute of limitations is a bar to the cause of action for all logs taken by the defendant in the state of Washington and removed into this state prior to January 27, 1893; and (3) in refusing to charge that, if the plaintiff permitted defendant, after taking the logs from the boom in Washington, to saw them into lumber, or if the defendant held them after such taking a sufficient length of time to permit the plaintiff to protect his rights by a foreclosure of his lien, he cannot recover.

It is urged that the judgment roll was not admissible in evidence because the defendant was not a party to that action, and because the logs were removed from the state of Washington prior to the rendition of the judgment. As already stated, the defendant took possession of the logs under an alleged purchase from Makarainen in Washington, after the commencement of the action in that state to foreclose the liens thereon; and it is common learning that a purchaser of real or personal property pending litigation concerning the title or the validity of a lien thereon takes the property subject to the rights of the plaintiff as settled by the final decree or judgment of the court. Walker v. Goldsmith, 14 Or. 125, 12 P. 537; Houston v. Timmerman, 17 Or. 499, 21 P. 1037, 4 L.R.A. 716, 11 Am.St.Rep. 848; 2 Black, Judgm. (2d Ed.) § 550; Richardson Bros. v. Petersen, 58 Iowa, 724, 13 N.W. 63; Diamond v. Lawrence County, 37 Pa. 353, 78 Am.Dec. 429; Fletcher & Sharp v. Ferrel, 9 Dana, 372, 35 Am.Dec. 143; McCutchen v. Miller, 31 Miss. 65, 88. The defendant's counsel do not seriously controvert this rule, but seek to make a distinction between an action of tort to recover damages for a violation of the Washington statute and a suit to foreclose plaintiff's lien on the logs. It is admitted, if we understand correctly, that in a suit to foreclose the plaintiff's lien in this state the decree of the Washington court would be conclusive, because the proceeding in that state was quasi in rem; but, since this is an action in tort, to recover damages for destroying the identity of the property to which the lien attached, the judgment can have no...