Eilers Piano House v. Pick

• Decision Date: 07 February 1911
• Citation: 113 P. 54,58 Or. 54
• Parties: EILERS PIANO HOUSE v. PICK.
• Court: Oregon Supreme Court

113 P. 54

58 Or. 54

EILERS PIANO HOUSE v. PICK.

Supreme Court of Oregon

February 7, 1911

Appeal from Circuit Court, Multnomah County; William N. Gatens Judge.

Action by Eilers Piano House against C.O. Pick, doing business as C.O. Pick Transfer & Storage Company.From a judgment for plaintiff, defendant appeals.Reversed and remanded.

This action was commenced May 20, 1908, to recover the possession of personal property.The complaint, omitting the formal parts, is as follows: "That plaintiff is, and was during all the times hereinafter mentioned, a corporation duly organized and existing under the laws of the state of Oregon.That on or about the 3d day of January, 1908, at Portland Or., the plaintiff was the owner of, and entitled to the possession of, the following goods, to wit: One Kimball piano, style 15 W, No. 145,569, and a piano stool accompanying the same, the value of said property being the sum of $350.That on or about the 3d day of January, 1908the defendant, at Portland, Or., wrongfully took said goods and chattels from the possession of the plaintiff and now wrongfully holds possession of the same from the plaintiff.That on or about the 2d day of January, 1908, and before the commencement of this action, plaintiff demanded possession of said goods and chattels, but that said defendant unjustly detains same, to the damage of this plaintiff in the sum of $100.Wherefore plaintiff demands judgment against the defendant for the recovery of said goods and chattels, or for the sum of $350, the value thereof, in case delivery cannot be had, and for the sum of $100 damages, together with its costs and disbursements in this action."The answer denies the material averments of the complaint and alleges that the piano has been and now is held under a lien for storage amounting to $18, and that upon the payment of such sum defendant has been and now is ready and willing to deliver the property to plaintiff.A reply put in issue the allegations of new matter in the answer, and, the cause having been tried without the intervention of a jury, the court made findings of fact and of law and, based thereon gave judgment for plaintiff, from which defendant appeals.

N.H. Bloomfield, for appellant.

Miller Murdoch, for respondent.

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

Objection is urged in this court to the complaint on the ground that it does not state facts sufficient to constitute a cause of action, a question not raised in the lower court.The plaintiff's counsel insists that, after the judgment herein was rendered, the piano was voluntarily surrendered to his client, and, such delivery being evidenced by the abstract, the appeal should be dismissed.These questions will be considered in their inverse order....