Krewson v. Purdom

• Decision Date: 24 June 1886
• Citation: 13 Or. 563,11 P. 281
• Parties: KREWSON and others v. PURDOM and others.
• Court: Oregon Supreme Court

11 P. 281

13 Or. 563

KREWSON and others v. PURDOM and others.

Supreme Court of Oregon

June 24, 1886

R. Williams, for appellants, Purdom and others.

W.R. Willis, for respondents, Krewson and others.

THAYER J.

This appeal is from a judgment of the circuit court for the county of Douglas, rendered in an action brought by the respondents against the appellants for the conversion of certain cord-wood. The action was in the ordinary form to recover damages for the conversion of personal property. The answer denied all the material allegations of the complaint, and alleged that said cord-wood was the property of Herman and Robert Aulauff, partners under the firm name of Aulauff Bros. The respondents at the trial attempted to establish that the wood in question originally belonged to some Italians, of whom one John Gotardi was a principal actor that they constituted a company under the name of Gotardi &amp Co.; that said company cut the wood on the land of one De Loney, in Douglas county, under the contract to pay De Loney stumpage at the rate of 10 cents a cord; that they subsequently, and on or about the nineteenth day of May 1883, sold it to the respondents for $2.50 a cord, less the price of hauling it to the railroad and the stumpage; that after said sale by Gotardi & Co. to the respondents, and on or about the twenty-sixth day of May, 1883, the appellant J.S. Purdom, who was then sheriff of said county of Douglas by his deputy, the appellant H.C. Slocum, attached the wood by virtue of an attachment issued out of the said circuit court in an action wherein I.R. Dawson, assignee of the said Aulauff Bros., was plaintiff, and certain parties designated as a company, under the name of Marai & Co., were defendants, the said Gotardi being one of the defendants; that said appellants refused to deliver the wood to the respondents upon demand made by them therefor; and that subsequently it caught fire, and mostly burned up.

The appellants claimed, and attempted to establish, that the said Aulauff Bros. purchased from Drain & Co. a contract they had with the railroad company to supply it with wood, and then contracted with said Marai & Co. to cut the wood; that said Marai & Co. included all the Italians belonging to the Gotardi company; that said Aulauff Bros. contracted with the said De Loney for the wood upon the place, and paid him the stumpage; and that all the wood was cut by said Marai & Co. for said Aulauff Bros.; and that they paid for the cutting thereof in supplies and money. The respondents maintained that after the Aulauffs made the contract with Marai & Co. to cut wood, Gotardi and his associates, consisting of 10 Italians, came to the state, and went to work for said Marai & Co. at a stipulated price, and were not a part of said company; that they continued working for Marai & Co. until about the twentieth of February, 1883, and then quit, and went and contracted with said De Loney for wood on his place; agreed to pay him 10 cents per cord for stumpage, and cut the wood in question; and that neither Marai & Co. nor Aulauff Bros. had anything to do with the matter; that they got their supplies from Aulauff Bros. while they were cutting said wood, through Marai & Co., and in payment of a debt said Marai & Co. was owing them for the work they did for said company; that on or about the seventh day of May, 1883, they made a contract with the respondents to receive from them supplies, and to let them have the wood; and that about a week before the wood was attached the respondent J.W. Krewson went up to De Loney's place, and Gotardi turned it over to him; that the wood was scattered over the premises where it had been cut; that it was not measured, but estimated to be between five and six hundred cords; that the said J.W. Krewson marked part of the piles "K. & Co."

The jury returned a verdict for the respondents, and against the appellants, for the sum of $1,050, upon which the judgment appealed from was entered.

A question was raised upon the argument as to whether the allegation in the answer that the wood was the property of Aulauff Bros. was new matter of defense, which would be taken as true if not controverted by a reply. There were two amended answers filed in the action, as appears from the transcript, in which said allegation was made; and a reply was filed to the first one denying it, but it does not appear that any reply to the latter one was filed. The respondents' counsel, however, contended that it was agreed by the counsel, in open court, when the last amended answer was filed, that the reply to the former one should be deemed a reply to that. Said counsel also filed a motion to expunge from the transcript said latter answer upon the ground that no order permitting its filing appears to have been made. The court was not inclined to entertain the motion. It would, however, have permitted counsel to take steps to have the record of the court below corrected if it had deemed it important, but the view I have taken of the question renders it unnecessary. In an action for the conversion of personal property an allegation in the answer that the property belongs to some third person is not, in my opinion, new matter of defense. It only controverts the allegation of ownership contained in the complaint. I am not prepared to say that such fact could be proved, under a formal denial of such allegation, but am satisfied that it only amounts to a traverse, and that proof of it merely disproves the plaintiff's title to the property, which he is bound to make out in the first instance. The plaintiff must have a general or special title in the property in order to maintain the action. Dubois v. Harcourt, 20 Wend. 43. And proof that it was owned and possessed by a third person defeats his right of recovery. It shows that he never had a cause of action; that a material allegation in his complaint is untrue. I do not maintain that a person having only possession of personal property cannot recover against a wrong-doer for the conversion of it. Possession is sufficient evidence of ownership to enable a party to maintain such an action as against one who interferes with it without having any right. In Duncan v. Spear, 11 Wend. 54, a purchaser of personal property at a void sale upon execution was held to have sufficient title to maintain trover against a stranger who converted it. And it is claimed that a trespasser can recover against one who takes the property from him without having any better right. 6 Wait, Act. & Def. 218. But I am inclined to think that possession would not be sufficient to authorize a recovery in such an action, unless it were an actual upholding under a claim of right. The law could not, consistently, permit a party who had obtained possession of personal property in violation of its rules to recover its value against any one. It is a well-settled principle of law that the satisfaction of a judgment for the conversion of property transfers the title to the defendant in the action. How could such a result follow when the plaintiff had no title,--had nothing beyond a tortious possession? The rule in trespass is of course different. In an action of that character the recovery is for an injury to the possession, and the fact that the plaintiff has possession is sufficient to maintain the action.

Upon the merits of this case, as shown by the bill of exceptions, there was but one question, which was this: For whom was the wood in controversy cut? If Gotardi & Co. cut the wood under the circumstances testified to by J.W. Krewson, Roger De Loney, August Hinneman, and Gotardi, then the sale to the respondents was valid; and if a delivery thereof was made, as testified to by said J.W. Krewson, they became the owners of it, and entitled to recover for its conversion. On the other hand, if the said wood was cut under the circumstances testified to by Herman Aulauff, J.C. Drain, H.M. Caldwell, and Robert Aulauff, it belonged to Aulauff Bros., and Gotardi's attempted sale of it to the respondents was a nullity, and they acquired no right under it. The question was one of fact, and the verdict of a jury thereon, whichever way it might be, would be final, and ought not to be disturbed, if the trial was properly had, and the case properly submitted.

The appellants contend that the court committed error in the trial of the action, and that the judgment should be reversed. It is objected, in the outset, upon the part of the respondents, that the notice of appeal does not specify the grounds of error with sufficient certainty, and that the court should not, therefore, consider them. There are, in all, 11 grounds of error assigned; but it is only necessary to consider the following,--the others are evidently untenable: "That said circuit court erred at the trial of said cause in admitting evidence offered by the plaintiffs, and objected to by the defendants, all of which were then and there duly excepted to by the defendants, as fully appears by the bill of exceptions on file...