Flegel v. Charles Koss & Bros. Co.

• Decision Date: 23 January 1906
• Citation: Flegel v. Charles Koss & Bros. Co., 83 P. 847, 47 Or. 366 (Or. 1906)
• Parties: FLEGEL v. CHARLES KOSS & BROS. CO. et al.
• Court: Oregon Supreme Court

83 P. 847

47 Or. 366

FLEGEL v. CHARLES KOSS & BROS. CO. et al.

Supreme Court of Oregon

January 23, 1906

Appeal from Circuit Court, Multnomah County; John B. Cleland, Judge.

Action by Flegel, trustee in bankruptcy, etc., against Chas. Koss &amp Bros. Company, Baumbach, Reichell & Co., and the American Surety Company. Judgment for defendants, and plaintiff appeals. Affirmed.

N.H. Bloomfield and A.F. Flegel, for appellant.

Dolph Mallory, Simon & Gearin, for respondents.

HAILEY J.

This is an action upon an undertaking given by the respondents for the redelivery of certain hops, attached as the property of one Phil Neis in an action against him brought by one Estelle Mayer, in which action the appellant herein was substituted as plaintiff. The respondents claimed to own the property attached, and from a judgment in their favor this appeal is taken.

On January 30, 1902, Estelle Mayer commenced an action in the circuit court of Multnomah county against Phil Neis to recover upon a promissory note, and filed her affidavit and undertaking for an attachment, and caused a writ of attachment to be issued under which the sheriff of that county attached two warehouse receipts, representing 179 bales of hops, as the property of the defendant Neis. The respondents, Chas. Koss & Bros. Company and Baumbach Reichell & Co., both eastern corporations dealing in hops claiming to be the owners of the hops attached, gave to the sheriff an undertaking for redelivery thereof, with the American Surety Company as surety thereon. The warehouse receipts and hops were then delivered to the respondents. In March following the defendant Phil Neis was declared a bankrupt, and the appellant herein, A.F. Flegel, was elected his trustee in bankruptcy, and by order of the bankruptcy court was substituted as plaintiff in the case of Estelle Mayer against Neis, after which he obtained judgment against Neis for the amount sued for. On this judgment an execution was issued to the sheriff of Multnomah county, who made return thereon that the hops attached had been delivered to the respondents upon their delivery to him of the undertaking for redelivery, which he attached to his return. The American Surety Company being the only resident signer of such undertaking, demand was made upon it for redelivery of the hops. Upon refusal to deliver them plaintiff, as trustee in bankruptcy of Neis and assignee of Estelle Mayer, instituted this action upon the undertaking for redelivery. The respondents filed their answer, denying ownership of the hops by Neis, and alleging ownership in themselves, to which answer a reply was filed containing a general denial only. A jury trial was waived, and the cause tried by the court, whose findings of fact and conclusions of law were filed and judgment entered thereon in favor of the respondents.

The real issue in this case was as to who owned the hops at the time they were attached. The record shows that on January 30, 1902, and for several years prior thereto, Phil Neis, under the trade name of Phil Neis & Co., had been acting as agent for the respondents, Chas. Koss & Bros. Company and Baumbach, Reichell & Co., in buying hops, and also purchased hops on commission for other persons, for which they paid him a commission of 1/2 cent a pound for all hops bought. On January 30, 1902, Neis bought of Balfour, Guthrie & Co. 179 bales of hops for $3,973.68, and gave in payment therefor his check, signed "Phil Neis & Co.," for that amount, and the agent of Balfour, Guthrie & Co. indorsed upon the two warehouse receipts representing this amount of hops, the following words: "January 30, 1902. Deliver the within hops to Phil Neis & Co. Balfour, Guthrie & Co." The delivery of this check to Balfour, Guthrie & Co. was made by Neis' clerk in the office of Balfour, Guthrie & Co., and the warehouse receipts were handed out by the agent, but before Neis' clerk could get possession of them they were snatched up by a deputy sheriff and taken into his possession under the writ of attachment in the case of Mayer against Neis, and never were delivered to Neis or his clerk. The check given by Neis in payment for these hops was drawn upon a bank in Portland where he did business under his trade-name, and in which bank he had about $4,000 to his credit at the time the check was drawn, $1,662.50 of this amount being proceeds of a draft drawn by him that day upon the respondents Chas. Koss & Bros. Company, and the remainder moneys obtained by him upon drafts drawn upon eastern buyers, other than respondent, for whom he was also agent.

The appellant claims that the purchase of these hops by Neis and payment therefor by his check, drawn upon his own bank account, together with the indorsement of the warehouse receipts to him, made Neis the owner of the receipts and the hops; and, further, that, if he was not the owner of all the hops, he was the owner of all, except the 70 bales purchased by him with the $1,662.50 received upon the draft from Chas Koss & Bros. Company on the day of the purchase of the...