Casto v. Murray
| Citation | 81 P. 883,47 Or. 57 |
| Parties | CASTO v. MURRAY et al. |
| Decision Date | 31 July 1905 |
| Court | Supreme Court of Oregon |
Appeal from Circuit Court, Marion County; George H. Burnett, Judge.
Action by Samuel Casto against Emma Murray and others. From a judgment for defendants, plaintiff appeals. Affirmed.
See 81 P. 388.
This is an action by Samuel Casto against Emma Murray, T.E. Strong and C.D. Crookham, to recover the possession of a horse. The complaint, so far as deemed material, is as follows "That on or about the 15th day of July, 1903, William Murray was the owner and in possession of one chestnut colored stallion, named Diablo, [and keeping him in the stud at the fair ground near Salem, in Marion county, Oregon; and at said date said Murray employed said plaintiff to care for and attend said stallion, and said plaintiff entered into the possession of said stallion, and thereafter, under said employment, gave him all necessary care and attention] until the death of the said William Murray, which occurred on or about the 21st day of August, 1903, at the city of Salem Oregon; [and that thereafter said plaintiff continued in the possession of said stallion, and cared for him, and gave him all necessary attention in the stud], until on or about the 26th day of August, 1903, when said defendant Emma Murray widow of said William Murray, then deceased, and claiming to be, and who was, the sole heir at law of said decedent, and claiming to be, and who was, the sole owner of said stallion, made and entered into an agreement with said plaintiff, by which the said plaintiff was to keep and care for said stallion in the stud for the season ending the 15th of August, 1904, upon the following terms and conditions, to wit," setting out such terms and alleging that plaintiff duly kept them "[that on and prior to the 26th day of January, 1904, and for a long time prior thereto, the said plaintiff was, ever since has been, and now is, the special; owner of, and entitled to the immediate possession of, said stallion, named Diablo, under and pursuant to the terms and conditions of said contract made and entered into by and between said plaintiff and said defendant Emma Murray, as hereinbefore alleged]." That on said 26th day of January, 1904, the said "defendants wrongfully and unlawfully took said stallion from the possession of said plaintiff at said fair ground near the city of Salem, in Marion county, Oregon, and ever since have and do now wrongfully and unlawfully withhold and detain the same from the possession of plaintiff in said Marion county, Oregon." The complaint then states the damages plaintiff claims to have sustained in consequence of such taking and withholding the possession of the horse. The court, upon motion, struck from the complaint the parts thereof included within brackets as hereinbefore indicated. The answer denies the material allegations of the complaint, and for a further defense avers that ever since Murray's death the stallion has been and is the property of the decedent's estate; that on March 25, 1904, the defendant Mrs. Murray was duly appointed administratrix of such estate, and, having qualified, she is entitled to the possession of the horse. As a second separate defense, it is alleged that, at and prior to the making of the alleged possession of the horse. As a second separate defense, it is alleged that, at and prior to the making of the alleged contract with plaintiff, Mrs. Murray, in consequence of grief occasioned by the death of her husband, was ill in body and mind, and so continued until January, 1904, and that by reason of such sorrow she was unable to understand or transact business, of which fact the plaintiff then well knew. A demurrer to each of the separate answers, on the ground that neither stated facts sufficient to constitute a defense to the complaint, was overruled, whereupon a reply was filed denying the averments of new matter in the answer, and a trial, being had, resulted in a judgment for the defendants dismissing the action, and plaintiff appeals.
W.M. Kaiser and W.T. Slater, for appellant.
John A. Carson and A.M. Cannon, for respondents.
MOORE J. (after stating the facts).
It is contended that William Murray delivered the stallion to plaintiff, whose possession thereof forms the basis of his right, and that by striking from the complaint the averments in relation thereto an error was committed. It is argued that such possession is supplemented by, but not dependent upon, the contract entered into with Mrs. Murray, which agreement was consummated to prevent her from obtaining possession of the horse in case she should be appointed administratrix of the decedent's estate. If the averments of the complaint, as prepared, can be construed as basing plaintiff's right of action upon the possession of the stallion which he secured from William Murray, the legal principle insisted upon is probably applicable; for the rule is quite general that bare possession of personal property, though the title thereto may be in another, affords the better right to the continued control thereof, as against mere trespassers, or persons who show no privity with the owner. Lewis v. Birdsey, 19 Or. 164, 26 P. 623; Danielson v. Roberts, 44 Or. 108, 74 P. 913, 65 L.R.A. 526, 102 Am.St.Rep. 627; Woolfork's Adm'r v. Sullivan, 23 Ala. 548, 58 Am. Dec. 305; Wheeler v. McCorristen, 24 Ill. 40; Van Namee v. Bradley, 69 Ill. 299; Cummins v. Holmes, 109 Ill. 15; Cullen v. O'Hara, 4 Mich. 132; Van Baalen v. Dean, 27 Mich. 104; Anderson v. Gouldberg, 51 Minn. 294, 53 N.W. 636.
The complaint, in our opinion, is not susceptible to the construction invoked, for plaintiff's right to the possession of the stallion is evidently based on the contract alleged to have been entered into with Mrs. Murray. It will be remembered that plaintiff avers he was employed by William Murray to care for the stallion. If the word "employed," as thus used, was intended to mean that plaintiff was engaged to perform certain labor, the relation created between Murray and him was that of master and servant, which was severed by the employer's death; there being no averment that the contrary was stipulated by the terms of the agreement. 20 Am. & Eng.Enc.Law (2d Ed.) 45. If, however, the word "employed" was used to express the creation of an agency coupled with an interest, so that plaintiff's right to the continued possession of the stallion extended after the death of the principal, that fact is not alleged in the complaint. It is stated therein that Mrs. Murray, on the death of her husband, became the owner of the horse, and, plaintiff having alleged that he entered into a contract with her whereby he was to keep and care for the stallion, he theoretically surrendered the possession of the property to and secured a new right from, her. The averment of obtaining possession of the horse from William Murray was evidently intended to state the fact by way of inducement, leading up to and explaining the subsequent contract, alleged to have been entered into with Mrs. Murray, upon which, in our opinion, the right of recovery is predicated. As the matter thus alleged was immaterial ( Gardner v. McWilliams, 42 Or. 14, 69 P. 915), no error was committed in striking it from the complaint, or in refusing to receive testimony offered by plaintiff tending to show that he secured possession of the horse from William Murray.
It is contended that the court erred in striking from the complaint the averment of plaintiff's special ownership of the stallion, and of his right to the possession thereof at the commencement of the action. In an action under our statute of claim and delivery, which is the common-law remedy of replevin, the complaint must show that the plaintiff is entitled to the possession of the personal property in question when the action was commenced. Kimball v. Redfield, 33 Or. 292, 54 P. 216; Simonds v. Wrightman, 36 Or. 120, 58 P. 1100. After eliminating the part of the complaint now under consideration, the remaining averments state the contract alleged to have been entered into with Mrs. Murray, and show that before the expiration of the time specified in the agreement the defendants unlawfully...
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