Laam v. Green

• Decision Date: 19 December 1922
• Citation: 106 Or. 311,211 P. 791
• Parties: LAAM v. GREEN.
• Court: Oregon Supreme Court

211 P. 791

106 Or. 311

LAAM v. GREEN.

Supreme Court of Oregon

December 19, 1922

Rehearing Denied Jan. 23, 1923.

In Banc.

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

Action by W. H. Laam against Mary L. Green. Judgment for plaintiff and defendant appeals. Affirmed.

This is an action for damages for conversion of personal property. Defendant appealed from a judgment, entered upon a verdict for plaintiff, in the sum of $750.

The complaint shows that plaintiff rented from defendant a 20-acre tract of land in Baker county for the season of 1919 and planted and cultivated a crop of potatoes thereon. On October 10th defendant took possession of the land and prevented plaintiff from harvesting the crop of the value of $1,000, and thereafter defendant wrongfully converted the same to her own use to plaintiff's damage in the sum of $1,000.

Defendant denies the complaint, except the renting until October 20 1919. Defendant further pleaded that the rental was $250, for which plaintiff executed to defendant a promissory note due October 20, 1919, secured by a chattel mortgage on the potato crop; that plaintiff without the consent of defendant sold and converted a portion of the potatoes, and failed to pay the rent; that the remainder of the potatoes, which plaintiff refused to dig, having been left in the ground and abandoned by plaintiff and the lease having expired, defendant in order to salvage something for rent was compelled to and did dig all she could of the crop about October 30th, consisting of 4,170 pounds, the value of which, after deducting expenses amounting to $115.10, she credited on plaintiff's note and counterclaimed for $168.25, the balance of the note. The reply put in issue the new matter of the answer.

The testimony tended to show, among other things, the following In April, plaintiff talked with Mr. and Mrs. Green together about renting the land, and Mr. Green showed him the land, and they agreed upon the rental and the mortgage. Plaintiff was to plant, cultivate, and dig potatoes on the land and sell them. Plaintiff planted and cultivated between 18 and 19 acres. After the crop was ready for harvest, between October 1st and 10th, he sent his two stepsons to dig the potatoes. He states, "They stopped the boys, and I went down to the store to see what the rumpus was." Mrs. Green, who owns the store, was not there; but Mr. Green was in charge and informed plaintiff that he had another man, Mr. Gibbons, to dig the potatoes, and that plaintiff could not dig the potatoes, and said, "If you do, I will cause trouble." Plaintiff said, "If those potatoes freeze, somebody will have to pay for them." Mr. Green told plaintiff and his stepson "to keep out of the spud patch down there." Mrs. Green never disaffirmed the action of her husband until the time of trial. Plaintiff also testified, in answer to interrogatories, as follows:

"Q. Did you ever have a conversation with Mrs. Green in regard to the sale of these potatoes, and, if so, tell us what it was. A. I told her that I had $300 worth sold when I dug the potatoes and I was going to turn her over the $250.

"Q. What did she say? A. She said, 'No, I will take those potatoes,' and I asked her what she would give me and told her what I was getting for them, and she said she wouldn't pay three cents, and I told her I wouldn't sell them to her then.

"Q. What did she offer to pay you for them? A. About two, I think."

This conversation appears to have been in September. Mrs. Green testified that she employed Mr. Gibbons to dig the potatoes. The testimony tended to show that Mrs. Green failed to harvest a large part of the crop, and tended to support the allegations of plaintiff's complaint.

Counsel for defendant, by timely objections, a motion for nonsuit, a motion for a directed verdict for defendant, and objections and exceptions to the instructions refused and given, laid the foundation for several assignments of error.

After the controversy arose, it appears that defendant took possession of the crop, dug a portion of the potatoes, and credited the market value of the portion harvested upon plaintiff's rent note.

J. B. Messick, of Baker (William H. Packwood, Jr., of Baker, on the brief), for appellant.

Frank C. McColloch, of Baker (McColloch & McColloch, of Baker, on the brief), for respondent.

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

Defendant contends that there was no competent testimony to show that Mrs. Green interfered with or prevented plaintiff from digging the potatoes at the proper season. With this we are unable to agree. We think the testimony tended to show that both her husband, Mr. Green, and Mr. Gibbons were acting on her behalf in the matter. As plaintiff testified, Mr. Green was present with Mrs. Green and plaintiff and took part in the negotiations for the lease and showed plaintiff the land. Plaintiff dealt with the two Greens. After plaintiff's helpers had been prevented from digging the potatoes by Gibbons, Mrs. Green's employee, Laam went to her place of business to see about the matter and found her husband, who had formerly acted for her, in charge of the store, and was threatened with trouble by him if he proceeded to care for the crop.

An agency, when once proved, may be presumed to continue until it is shown to be terminated. McLeod v. Despain, 49 Or. 536, 90 P. 492, 92 P. 1088, 19 L. R. A. (N. S.) 276, 124 Am. St. Rep. 1066. Twice plaintiff was forbidden by Gibbons and Mr. Green to harvest the crop, and, as Mrs. Green held the chattel mortgage the terms of which she claimed had been broken, plaintiff could reasonably do nothing else but submit to her dominion over the property. The trial court, however, withdrew the consideration of the statements of Mr. Green from the jury, for the reason that his agency was not sufficiently proven.

Defendant proceeded to take possession of the crop according to the terms of her mortgage and to harvest the same or a portion thereof. The trial court instructed the jury to the effect that, if Mrs. Green failed to dig the crop of potatoes carefully and in a husbandlike manner, she was liable for such lack of care. Considerable testimony was introduced as to the amount of the crop raised on the land which was not harvested. Defendant complains for the reason that plaintiff's witness Morris was permitted in his testimony to estimate the crop grown on the 20-acre tract that season. Mr. Morris owned similar land adjoining the rented land, was acquainted with the land upon which the crop was raised, and saw it frequently during the season of 1919. He had been a farmer for a number of years, and he raised a crop of potatoes on his adjoining land that same year. A portion of the crop not having been harvested, it was not possible to introduce direct evidence of the amount and value of the crop. It was competent for Morris, as a farmer who was acquainted with the land and knew the manner of cultivation of the crop raised during the season of 1919, to testify about how much the land would produce in order to arrive at the value of the property converted and fix the amount of damages. This was the only method of proving the facts which were essential to the due and proper administration of justice. It was not a mere opinion of the witness, but a conclusion of fact to which the judgment and knowledge of the witness had led him. Necessarily the assertion was largely an opinion, but in effect it was a compound question of fact and opinion. Nutt v. S. P. Co., 25 Or. 291, 296, 35 P. 653; Farmers' Bank v. Woodell, 38 Or. 294, 61 P. 837, 65 P. 520; National Bank v. Fire Ass'n, 33 Or. 172, 181, 50 P. 568, 53 P. 8. As stated by Mr. Justice Wolverton in the case last mentioned (33 Or. at page 182, 53 P. at page 11):

"Where the witness has had the means of personal observation, and the facts and circumstances which led the mind of the witness to a conclusion are incapable of being detailed and described so as to enable anyone but the observer himself to form an intelligent conclusion from them, the witness may be allowed to add his opinion or the conclusion of his mind."

The trial court properly ruled that the evidence offered was...