Jeffries v. Pankow

• Decision Date: 30 September 1924
• Citation: 229 P. 903,112 Or. 439
• Parties: JEFFRIES v. PANKOW.
• Court: Oregon Supreme Court

229 P. 903

112 Or. 439

JEFFRIES v. PANKOW.

Supreme Court of Oregon

September 30, 1924

In Bank.

Appeal from Circuit Court, Tillamook County; George R. Bagley Judge.

On rehearing. Former opinion adhered to.

For former opinion, see 223 P. 745.

Coshow and Bean, JJ., dissenting.

C. W. Barrick, of Tillamook (Webster Holmes, of Tillamook, on the brief), for appellant.

Geo. P Winslow, of Tillamook (Botts & Winslow, of Tillamook, on the brief), for respondent.

BURNETT J.

This case was originally submitted on briefs and reversed in an opinion reported in 223 P. 745. On a lengthy petition for rehearing accompanied by a bumptious brief the court granted the prayer of the petition and the case has been again argued. As before, the citations and arguments of counsel have had careful consideration.

It seems to be the contention for the plaintiff that in considering the sufficiency of the complaint, no notice whatever should be taken of the admitted contract between the parties out of which the transaction arose and which appears in the answer. The complaint therefore will be examined upon that basis. The pleading in question is as follows:

"Plaintiff for cause of action against defendant alleges:

"(1) That on or about the 7th day of April, 1920 plaintiff and defendant entered into a contract wherein and whereby defendant promised and agreed to sell to plaintiff the following described personal property, to wit: One five-passenger Nash touring car, serial number 160417, for the purchase price of $1,830, the sum of $730 being paid by plaintiff upon said purchase price at the time of entering into the agreement, and the balance of said purchase price to wit, $1,100, plaintiff agreed to pay defendant and in pursuance of said contract and payment made on the purchase price, defendant delivered possession of said property to plaintiff.

"(2) That on or about the 7th day of July, 1920 plaintiff delivered said property to defendant, upon the express understanding and agreement that defendant would take said car and try to sell the same, said defendant being engaged in the general garage and automobile business at Tillamook City, Oregon, and would try and obtain for said property the best available price, and that from the proceeds of said sale plaintiff should receive all that was obtained over and above the $1,100 which was still owing by plaintiff to defendant upon the purchase price of said car.

"(3) That at the time of the delivery of said car to defendant by plaintiff as aforesaid, and at the time of the conversion and appropriation thereof as hereinafter set forth, said car was of the reasonable value of $1,650.

"(4) That defendant without selling said car except as hereinafter stated, on or about the 20th day of July, 1920, wilfully appropriated and converted said property to defendant's own use, and has ever since said date used said property as his own property, and plaintiff waives any tort committed by defendant in said conversion and appropriation of said property, and elects to charge defendant with the reasonable value of said property, less the balance owing on the purchase price thereof by plaintiff, as for an implied purchase by defendant of plaintiff's interest therein.

"(5) That defendant fails, neglects and refuses to pay plaintiff any part thereof, and the whole thereof is now due and owing from defendant to plaintiff."

This declaration concluded with a demand for judgment against the defendant for $500, with interest thereon at 6 per cent. per annum from July 20, 1920, and for the costs and disbursements of the action.

The plaintiff attempts to declare as for trover and conversion. It is said that he delivered the property to the defendant on July 7, 1920, of course with the understanding alleged. This being true, the defendant was in the lawful possession of the car by the consent of the plaintiff. The attempted declaration of trover and conversion is not laid in the cepit in this instance. If it lies at all, it must have been in the detinet. The difference between the two is that in the first the action is grounded on the unlawful taking of the property without the consent of the owner. In the second instance it is based on unlawful detention, and before a cause of action will arise upon the detention of the property which has its origin in the consent of the plaintiff, it must appear that a demand was made for its return.

It is said (38 Cyc. 2032):

"Trover will not lie against one rightfully in possession. Such a possession must first be transformed into a wrongful one by a refusal to surrender property. Hence a demand and refusal are necessary for the maintenance of trover in all cases in which the defendant was rightfully in possession. Demand and refusal are superfluous however, whenever a conversion can be otherwise shown and evidence thereof may be omitted only if one of the following circumstances is proved: Unavailability of a demand and possession maintained in violation of one's contract and tortious taking and tortious levee or attachment; acts of ownership; retention of money which it was the defendant's duty to pay to plaintiff; diversion of property from the special purposes for which it was received; an unfulfilled promise to return the goods or another distinct act of conversion in general."

We are considering at present only the sufficiency of the complaint without reference to any other writing in the record. Having shown in the early part of his complaint that the defendant was rightfully in possession of the chattel, the plaintiff must then aver something to obviate the necessity of demand in order to constitute conversion. In the absence of some such allegation dispensing with demand, the plaintiff cannot prove an excuse for not demanding a return, for the proofs must correspond with the pleading. "He who seeks to recover in trover must prove that he was in actual possession of the chattel converted at the time of conversion or that he had the right of immediate possession thereof." 38 Cyc. 2044.

In Pacific Live Stock Co. v. Isaacs, 52 Or. 54, 70, 96 P. 460, 466, the action was in conversion for the value of a quantity of hay. Concluding the discussion of the various phases of the case, the court used the following language:

"In any event, because of these decisions, it cannot be said (what must necessarily be said to entitle plaintiff to recover in this action) that, at the time defendants purchased, plaintiff had possession or the right of immediate possession."

The same doctrine is taught in Johnson v. Oregon Steam Navigation Co., 8 Or. 35. In the present instance, according to the complaint, the property was never to be returned to the plaintiff. On the contrary, the defendant was to try to sell it and the only right respecting the property was that the plaintiff should have the surplus of the proceeds of sale over what was necessary to liquidate the balance of the original purchase price of the car. No act of the defendant is pleaded which amounts to a conversion, or which excuses the lack of demand or the necessity of the plaintiff being in possession or entitled thereto at the commencement of the action unless it be the following:

"That defendant, without selling said car except as hereinafter stated, on or about the 20th day of July, 1920, wilfully appropriated and converted said property to defendant's own use, and has ever since said date used said property as his own property."

As already pointed out, where the matter lies in the detinet no conversion can be predicated on the transaction until there has been a demand. So far, therefore, as the phrase "willfully appropriated and converted said property to defendant's own use" is concerned, it must be laid aside in face of the fact, otherwise appearing in the same pleading, that the possession of the property was voluntarily delivered by the plaintiff to the defendant. The averment that the defendant has used the property as his own property does not show that a demand for its return would have been vain.

In Owens v. Weedman, 82 Ill. 409, according to the syllabus it is said:

"To maintain trover the plaintiff must show a tortious conversion of personal property, and that, at the time of such conversion, he had a right of property in the chattel converted, and also had the possession thereof, or a right to its immediate possession."

The court there quoted with approval 1 Chitty's Pleading, 167, as follows:

"To support this action the plaintiff must, at the time of the conversion, have had a complete property, either general or special, in the chattel, and also the actual possession thereof, or the right to the immediate possession thereof."

The mere use of the property constitutes no more than a trespass which may be compensated by the actual damage inflicted upon the owner, which would be covered by the reasonable value of the use to which it was put. It would be grossly unjust to lay down as a hard and fast rule that because A. had used the property of B. to some extent, he should be compelled to buy the same or what is in the same effect, to pay as damages the full value of the property. The effect of a judgment in trover and the satisfaction thereof is to transfer to the defendant as of the date of the conversion, the title of the property converted. 38 Cyc. 2112; Hepburn v. Sewell, 5 Har. & J. (Md.) 211, 9 Am. Dec. 512; Backus v. West, 104 Or. 129, 146, 205 P. 533. The pleading and proof must go further and show that the use was in complete defiance of the plaintiff's title and with an intent permanently to deprive him of his property therein.

A leading case on this subject is Lee Tung v Burkhart, 59 Or. 194, 116 P. 1066. The subject is exhaustively considered in the opinion written by ...