Daniels v. Foster & Kleiser

• Court: Oregon Supreme Court
• Writing for the Court: HARRIS, J.
• Citation: Daniels v. Foster & Kleiser, 95 Or. 502, 187 P. 627 (Or. 1920)
• Decision Date: 17 February 1920
• Parties: DANIELS v. FOSTER & KLEISER.

187 P. 627

95 Or. 502

DANIELS v. FOSTER & KLEISER.

Supreme Court of Oregon

February 17, 1920

Department 1.

Appeal from Circuit Court, Multnomah County; H. H. Belt, Judge.

Action by Sarah Jane Daniels, executrix of the estate of Edward J W. Thompson, deceased, against Foster & Kleiser, a corporation, to recover $500, the alleged value of a building which, the plaintiff claims, was wrecked and appropriated by the defendant, Foster & Kleiser, a corporation. When the plaintiff "had completed the introduction of her testimony" the defendant moved for a judgment of nonsuit. The court sustained the motion and the plaintiff appealed. Affirmed.

L. E. Schmitt, of Portland, for appellant.

L. A McNary, of Portland, for respondent.

HARRIS J.

There is no bill of exceptions. There is no transcript of any of the evidence. We have before us no part of the record made in the circuit court, except the pleadings, consisting of an amended complaint, an answer and a reply, and the recorded order allowing the motion for a nonsuit. The pleadings and the order made on the motion for a nonsuit are the only sources of information accessible to us, and our knowledge of what occurred in the circuit court is limited to whatever is revealed by that order and those pleadings.

The first three paragraphs of the amended complaint contain nothing but formal allegations to the effect that Sarah Jane Daniels is executrix of the estate of Edward J. E Thompson, who died on December 29, 1916, and that the defendant is a corporation. In paragraph IV it is averred that Thompson became the owner by purchase of the building and fixtures located at 314 1/2 East Morrison street in Portland, and that "subsequently thereto said premises were rented up to about July 1, 1916, when it became vacant."

Paragraphs V and VI are as follows:

"That the aforementioned building so owned by said Thompson was standing on leased ground owned by John S. Beall and one Mr. Weaver, who rented it to said Thompson and subsequently to his guardian, until said building was taken and removed by defendant as hereinafter alleged.

"That on or about the 1st of October, 1916, the said defendant, without notice to or knowledge of said Thompson or his guardian, did completely wreck and remove the building so owned by said Thompson as aforesaid, including the fixtures contained therein, and converted the same to his own use and benefit, and erected in the place where said building stood its sign and bill board."

After alleging in paragraph VII that the reasonable value of the building and its contents at the time of its removal was $500, the amended complaint concludes with a demand for a judgment for $500.

In legal effect the answer admits paragraph IV of the amended complaint.

Referring to paragraph V of the amended complaint the answer is as follows "That as to whether or not any of the allegations contained in paragraph V of the amended complaint is true this defendant has no knowledge or information sufficient to form a belief, excepting that defendant admits that John S. Beall et al. are, and were at all times mentioned in the complaint, the owners of the ground at the location known as No. 314 1/2 East Morrison street, in the city of Portland, Or."

Paragraph VI is denied, except as alleged in the further and separate answer. Paragraph VII is denied without qualification, and then the defendant sets out a further and separate answer, in which the corporation avers that, as agent of and acting under the direction of John S. Beall and associate owners of the land, the defendant did in October, 1916, take down a small metal building situated on the land and remove it without damage to it and stored it, together with all the fixtures, in the defendant's warehouse in Portland, "where the same now are and ever since have been, but that as to who is or was the owner of said building, at the time the same was so taken down and removed, this defendant has no knowledge or information sufficient to form a belief"; that prior to October 1, 1916, the defendant leased the land for the purpose of constructing "thereon advertising signs and displays"; and that thereupon and without any knowledge on its part as to the ownership of this vacant building, or the fixtures in it, and under the direction of the owners of the land, the defendant removed the building and fixtures to its warehouse "subject to the delivery thereof to the lawful owner." The defendant further alleges that neither the plaintiff nor the decedent was the lessee of the premises "on or after October 1, 1916, nor for some time prior thereto." The defendant avers that tender and delivery of the building and fixtures "is and will be made to the owner thereof upon proof of such ownership; the same being of no greater value than the sum of $25."

The reply denies all the further and separate answer.

The following is a transcript of the recorded order allowing the motion for a judgment of nonsuit:

"This cause coming on regularly for trial on this day before the court and a jury, the plaintiff appearing in person by Schmitt & Schmitt, her attorneys, and the defendant appearing by L. A. McNary, its attorney, and the testimony of George M. Smith, a witness for the plaintiff, having been taken, and the plaintiff having rested, and the defendant by its attorney thereupon having moved for a nonsuit on the ground of the failure of the plaintiff to allege or prove demand upon defendant for the surrender of the property alleged to have been converted by the defendant to its own use, and the court being fully advised upon the said motion:

"It is now therefore ordered and adjudged that the motion of the defendant for a nonsuit against the plaintiff be and the same is hereby allowed, and such nonsuit is granted in favor of the defendant and against the plaintiff herein."

The plaintiff argues that the judgment must be reversed on the theory that the record presented to us necessarily shows that the court sustained the motion for a judgment of nonsuit on the ground "of the failure of the plaintiff to allege or prove demand upon defendant for the surrender of the property," and that such ruling was necessarily erroneous; while the defendant insists that the judgment must be affirmed for the reason that error must be made affirmatively to appear, and since there is neither a transcript of all the evidence nor any kind of a bill of exceptions it must be presumed that the judgment of nonsuit was properly granted.

If a person is rightfully in possession of the property of another, and is neither asserting title to it nor exercising such dominion over it as is inconsistent with the right of the owner, then ordinarily a demand must be made for the property, followed by a refusal to deliver, in order to work a conversion ( Ramsby v. Beezley, 11 Or. 49 8 P. 288); for in such a case there is no conversion until there is a demand and a refusal, and the demand ordinarily becomes necessary before the rightful possession is transformed into a wrongful possession. While, as ruled in Lee Tung v. Burkhart, 59 Or. 194, 204, 116 P. 1066, a case in some of its material particulars similar to the one here, in trover it is not enough that the facts show a trespass, yet, if the defendant exercised some act of dominion or control over the plaintiff's property in denial of her right or inconsistent with it, then the defendant is...