Hunt v. First Nat. Bank

• Decision Date: 20 December 1921
• Citation: 102 Or. 398,202 P. 564
• Parties: HUNT v. FIRST NAT. BANK OF HALFWAY.
• Court: Oregon Supreme Court

202 P. 564

102 Or. 398

HUNT v. FIRST NAT. BANK OF HALFWAY.

Supreme Court of Oregon

December 20, 1921

In Banc.

Appeal from Circuit Court, Baker County; Gustav Anderson, Judge.

Action by G.L. Hunt against the First National Bank of Halfway. From a judgment sustaining a demurrer to the complaint and dismissing the action, plaintiff appeals. Affirmed.

William Smith, of Baker, for appellant.

Charles J. Shelton, of Halfway, for respondent.

BURNETT C.J.

The essential allegations of the complaint in this action are as follows:

"That heretofore, to wit, on or about the 19th day of November, 1919, plaintiff was the owner and possessed of four United States Liberty and Victory bonds of the par value of $350, which he then and there delivered to said defendant at its request.

"That thereafter, to wit, on or about the 16th day of December 1920, defendant converted said bonds and each and all thereof to its own use, and that said bonds were then and there of the actual market value of $339.15.

"That on said December 16, 1920, defendant parted with the possession of said bonds and all thereof."

The plaintiff appealed, having stood upon his complaint, to which the circuit court sustained a general demurrer.

Conversion is thus defined:

"Conversion is any distinct act of dominion wrongfully exerted over another's personal property in denial of or inconsistent with his rights therein, such as a tortious taking of another's chattels, or any wrongful exercise or assumption of authority, personally or by procurement over another's goods, depriving him of the possession permanently or for an indefinite time." 26 R.C.L. 1098.

As between the parties to an action based on conversion, the plaintiff must allege a property in himself; otherwise there would be nothing of which conversion could be predicated for him. No one has a cause of action for the conversion of the property of another. He must aver property in himself, to which the act of conversion is applicable at the time. It is not enough that the plaintiff at some time owned the property. To support his action he must allege some kind of property in himself at the time the act of conversion was performed. Kennett v. Peters, 54 Kan. 119, 37 P. 999, 45 Am.St.Rep. 274 and note; Raymond v. Blancgrass, 36 Mont. 449, 93 P. 648, 15 L.R.A. (N.S.) 976. As said in Miller v. Hirschberg, 27 Or. 522, 40 P. 506:

"The action of trover is founded on the right of property, general or special, and right to the possession in plaintiff, and possession and an unlawful conversion by defendant. The material averments in an action of this character are ownership and right to the possession in plaintiff, and that the defendant wrongfully took and converted the property in question to his own use, or that, being lawfully in possession thereof, he so converted it."

This language is quoted with approval in Austin v. Vanderbilt, 48 Or. 206, 95 P. 519, 6 L.R.A. (N.S.) 298 note, 10 Ann.Cas. 1123, 120 Am.St.Rep. 800.

The all-important, vital element is property in the plaintiff and must be directly alleged if he would have a sufficient complaint. This is necessary to the "plain and concise statement of the facts constituting the cause of action," required by section 67, Or.L., describing the essentials of a...