Goltra v. Penland

• Decision Date: 11 August 1902
• Citation: 42 Or. 18,69 P. 925
• Parties: GOLTRA v. PENLAND.
• Court: Oregon Supreme Court

69 P. 925

42 Or. 18

GOLTRA v. PENLAND.

Supreme Court of Oregon

August 11, 1902

Appeal from circuit court, Morrow county; W.R. Ellis, Judge.

Action by W.H. Goltra, executor of Hugh Fields, against Jane Penland, executrix of William Penland. From a judgment in favor of defendant, plaintiff appeals. Reversed.

This action was originally brought by Hugh Fields against the executrix of the estate of William Penland, deceased, to recover $10,306, the value of certain sheep alleged to have been converted by Penland to his own use. After Penland's death, Fields presented to the executrix for allowance a claim for the value of the sheep in question, in the following form:

"In the County Court of Morrow County, State of Oregon. In the Matter of the Estate of William Penland, Deceased.

                            The Estate of William Penland, Deceased, Dr., to Hugh
                            Fields
                          
                            1901
                          
                            To the value of 2,888 ewes at $3 per head
                            
                          
                            $ 8,664 00
                          
                            To 821 yearling lambs at $2 per head
                            
                          
                            1,642 00
                          
                            
                          
                            ------------
                          
                            Total 
                          
                            $10,306 00
                          
                            Interest on same from December 1, 1900, at 6 per cent
                            ..
                          
                            ------------
                          
                            Total
                            .........................................................
                          
                            $
                          
                

"State of Oregon, County of Morrow--ss.: I, Hugh Fields, being first duly sworn, depose and say: That William Penland, deceased, during his lifetime, and for several years previous to his death, had in his possession and on shares one band of ewe sheep, my property; that in the month of June, 1900, a settlement was had between me and said William Penland, and at said time the said William Penland had in his possession, belonging to me, 2,888 ewes and 821 yearling lambs, and it was agreed between me and the said William Penland that the said William Penland should run said band of ewes and lambs for another year from said time; that since said time, and during the month of November, 1900, the said William Penland, without my knowledge or consent, wrongfully and unlawfully sold and disposed of said ewes and said lambs, and all of them, and converted the same to his own use, and said ewes were at the time of said sale of the value of $3 per head, and said lambs were at the time of said sale of the value of $2 per head, making a total of $10,306 due me for said ewes and lambs from the estate of William Penland, deceased, with interest thereon at the rate of six per cent. per annum from December 1, 1900; that no part of the same has been paid; that there are no offsets or counterclaims against the same. [ Signed] Hugh Fields.

"Subscribed and sworn to before me this 18th day of April, 1901. [ Signed] C.E. Redfield, Notary Public for Oregon. [ Seal.]"

As the claim was not allowed, this action was brought, and on November 12th an amended complaint filed, alleging, in substance, that for several years prior to the 1st day of June, 1900, Penland had in his possession a band of ewe sheep, the property of plaintiff, which he had been caring for on shares; that on June 1, 1900, he and the plaintiff had an accounting and settlement in reference to such sheep, wherein it was ascertained and agreed by and between them that Penland then had of such sheep and their increase 2,888 ewes and 821 yearling lambs, which it was agreed he should keep and care for on shares another year, when he was to return them to the plaintiff, together with a share of the wool and increase; that in pursuance of such agreement he retained possession of the sheep until November, 1900, when, without the knowledge or consent of the plaintiff, he wrongfully and unlawfully sold and disposed of them, converting the proceeds to his own use, to the plaintiff's damage in the sum of $10,306. The answer denies all the material allegations of the complaint, except the death of Penland and the defendant's appointment and qualification as executrix, and for an affirmative defense alleges that in the fall of 1897 Penland had in his possession about 800 sheep belonging to the plaintiff, which at the latter's request he sold and disposed of, and settled for the proceeds in full. Before the issues were made up Fields died, and W.H. Goltra, who was appointed executor and substituted as plaintiff, filed a reply, denying the material allegations of the answer. Upon the issues thus joined a trial was had, and at the close of the testimony the court, on motion of the defendant, struck out all the evidence as to the value of the sheep, except that of Fields, and directed a verdict in favor of the defendant, on the ground that the evidence was insufficient under the statute. From the judgment rendered in favor of the defendant on the verdict so directed, plaintiff appeals.

H.H. Hewitt, for appellant.

G.W. Phelps and H.S. Wilson, for respondent.

BEAN, J. (after stating the facts).

In support of the ruling of the trial court in directing a verdict it is argued that there is a fatal variance between plaintiff's claim as presented to the executrix for allowance and his cause of action set out in the complaint. But we are unable to concur in this position. The claim was for 2,888 ewe sheep and 821 yearling lambs converted by the deceased to his own use, of the alleged value of $3 a head for ewes and $2 for lambs, and the action was prosecuted for the same demand. The fact that the verification of the claim does not state the circumstances out of which the liability arose with the same particularity as required in a complaint is no objection to its introduction in evidence in this action. The statute neither provides nor requires any particular form for a claim against the estate of a deceased person. It is...