Blaser v. Fleck

• Decision Date: 11 May 1920
• Citation: 96 Or. 187,189 P. 637
• Parties: BLASER ET UX. v. FLECK ET UX.
• Court: Oregon Supreme Court

189 P. 637

96 Or. 187

BLASER ET UX. v. FLECK ET UX.

Supreme Court of Oregon

May 11, 1920

Department 2.

Appeal from Circuit Court, Tillamook County; George R. Bagley Judge.

Action by Martin Blaser and wife against Jefferson Fleck and wife resulting in judgment for plaintiffs, which was set aside on defendants' motion, and new trial granted, and plaintiffs appeal. Judgment reversed, and judgment entered on the verdict for plaintiffs.

This is an action for the conversion of certain personal property. The cause was tried to the court and a jury and a verdict and judgment rendered in favor of the plaintiffs. Upon the motion of defendants to set aside the same because the evidence was insufficient to support the verdict, the court set aside the verdict and granted a new trial. From this judgment plaintiffs appeal.

The plaintiffs, by their complaint, allege, in effect, that they are husband and wife; that on a certain date they were the owners of 25 tons of hay and 6 cows of the total value of $1,350; that defendants wrongfully converted the same to their own use. The answer consisted of a general denial. The jury returned a verdict for the plaintiffs for the sum of $1,130.

The motion for a new trial was granted for the reason there was no evidence to show that--

The plaintiffs "jointly owned any of the property in controversy, but that the evidence did show that a portion of the property in controversy, to wit, two cows and the hay described in the complaint, were owned by plaintiff Martin Blaser, and that the other four cows were the property of plaintiff Catharine Blaser, so that there was no evidence to support a verdict in favor of both of the plaintiffs, and no evidence sufficient to authorize the jury to find a verdict for either of the plaintiffs alone for the amount of the verdict."

S. S Johnson and T. B. Handley, both of Tillamook, for appellants.

H. T Botts, of Tillamook (Geo. P. Winslow, of Tillamook, on the brief), for respondents.

BEAN J. (after stating the facts as above).

Plaintiffs contend:

"First, there was evidence before the jury of joint or community ownership by the plaintiffs; second, that the evidence before the jury showed that either plaintiff had sufficient interest to maintain an action for the conversion of the property; and, third, in any event, a conversion of the property by the defendants was established at a time when it was in the possession and under the control of the plaintiffs, and that the defendants can never be sued again for the same conversion, and have not been cut off from any just offset or counterclaim against either or both of the plaintiffs, by reason of the latter's joining in this action."

The testimony tended to show that plaintiffs, who were husband and wife, were operating a dairy; that most of the cows were leased; that they owned six cows, which were kept with the leased ones; that, on account of the services of Mrs. Blaser, Mr. Blaser had some time before the action in question promised to give her four calves, which had grown to cows. Martin Blaser, as witness, in describing the cows taken by the defendant, said: "And there were six cows we had in the barn ready to take way." Mr. Blaser had leased the farm from the defendants, and when vacating the premises, as he states:

"I told Fleck 'I don't want to leave them cows here;' and so he said I had to leave everything; and I told the sheriff and the sheriff said, 'You just turn them cows over to me and if something happens to those cows you just come to me;' and then I turned them cows over to him and turned them out in the pasture while he was there. * * * The cows I claimed at that time and which Fleck took charge of; those yearlings I brought on the place. * * * My wife worked for me down on Haberlach place and I told her she could keep those heifers if she do the milking."

This witness asserts his title to both the cows and the hay. Mrs Blaser testified, in effect, that she had been Martin Blaser's wife for eight years and assisted him in conducting his dairy ranches and harvesting the hay during that period, and was at the time...