Krebs Hop Co. v. Taylor

• Decision Date: 18 August 1908
• Citation: 97 P. 44,52 Or. 627
• Parties: KREBS HOP CO. v. TAYLOR et al.
• Court: Oregon Supreme Court

97 P. 44

52 Or. 627

KREBS HOP CO. v. TAYLOR et al.

Supreme Court of Oregon

August 18, 1908

Appeal from Circuit Court, Polk County, George H. Burnett, Judge.

Action by the Krebs Hop Company, a corporation, against R.J. Taylor and another Judgment for defendants. Plaintiff appeals. Affirmed.

This is an action by the Krebs Hop Company, a corporation, against R.J. Taylor and I.W. Dickenson to recover possession of a pair of horses, a buggy, and a set of harness, or the alleged value thereof, in case possession cannot be secured, and damages for the detention; the complaint being in the usual form. The answer denied the material allegations of the complaint, except the incorporation of the plaintiff, and that it was the owner of the property. For a separate defense, it is averred: That on March 27, 1907, the chattels demanded were in the possession of M. Krebs, who left the horses in a public street of Independence for more than three hours, without food or shelter, which neglect constituted cruelty to animals and violated an ordinance of that city enacted to prevent inhumanity, and which requires the city marshal, for such transgression, to take up, feed, and shelter the stock at the expense of the owner; that at the time stated Taylor was the marshal of Independence, and pursuant to the municipal regulation mentioned he took the horses and delivered them to Dickenson, the keeper of a livery stable, who cared for the animals and notified Krebs that he could secure them without the payment of any charge whereupon the latter directed that the team be brought to him, and Dickenson, complying therewith, started to take the horses to Krebs, who countermanded the instructions, and ordered the team to be taken back to the barn, where it ever since has been, subject to his command; that it would have been delivered to the plaintiff, at any time, upon payment of the reasonable charges incurred; and that the taking and care mentioned constitute the tort alleged in the complaint. The reply admitted that, at the time and place thus specified Krebs was in possession of the property, but denied all other allegations of new matter in the answer, except as alleged in the complaint. At the trial a judgment of nonsuit was given and the plaintiff appeals.

J.A Carson, for appellant.

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

A statement of the material testimony offered is deemed essential to an understanding of the action of the court in granting the nonsuit. M. Krebs declared upon oath: That on March 27, 1907, at Independence, the plaintiff was in possession of the property in question; that about 10 o'clock at night of that day, when he was ready to go home, he could not find his team; that soon thereafter he saw Taylor, and, having learned that he had taken the team, he asked him to get it, but the latter refused to comply with the request; and that the witness made no other demand for a return of the property. The testimony respecting the demand is corroborated by the sworn declarations of Frank Flakes, who was present when Krebs requested the marshal to return the team. L. Krebs testified that the reasonable value of the use of all the property described in the complaint was $4 a day. The court, upon objection of defendants' counsel that no demand for a return of the property was necessary, excluded copies of letters mailed to the defendants, respectively, requesting them to return to the plaintiff the chattels specified. The court was then requested to grant a judgment of nonsuit on the ground that no testimony had been offered in support of the cause of action stated, sufficient to be submitted to the jury, and that the complaint alleged a joint taking by the defendants while the testimony tended to show that Taylor alone seized the property. When this motion was interposed, plaintiff's counsel stated that they elected to proceed against Taylor and to dismiss the action as to Dickenson, whereupon the court announced that leave to do so would be granted, if the defendants' counsel consented, but upon their refusal the action was dismissed without prejudice.

The foregoing synopsis is believed to be a fair statement of all material parts of the bill of exceptions. The answer avers that the horses, harnessed to the buggy, were left hitched by Krebs, and that Taylor took the horses and delivered them to Dickenson; but that pleading makes no mention of the buggy or harness. Flakes stated upon oath that he remembered the night when Taylor took the Krebs Hop Company's team and buggy. His assertion is the only declaration tending to show that the city marshal seized the vehicle, and no testimony was offered in relation to the harness. Although two reasons are stated in the motion for...