Lee Tung v. Burkhart

• Decision Date: 22 June 1911
• Citation: 59 Or. 194,116 P. 1066
• Parties: LEE TUNG et al. v. BURKHART.
• Court: Oregon Supreme Court

116 P. 1066

59 Or. 194

LEE TUNG et al. v. BURKHART.

Supreme Court of Oregon

June 22, 1911

Appeal from Circuit Court, Multnomah County; Earl C. Bronaugh Judge.

Action by Lee Tung and others against Cornelia Burkhart. From a judgment in favor of defendant, plaintiffs appeal. Affirmed.

This is an action for the conversion of certain merchandise. The cause was tried by the lower court without a jury, and, from a judgment in favor of defendant, plaintiffs appeal.

The gist of the complaint is that on July 27, 1907, the plaintiffs, under a lease dated August 2, 1906, three years of the term of which were unexpired, were in possession of a certain store building at No. 147 Second street, Portland Or., all rents due thereon having been paid; that they were carrying on a wholesale and retail merchandise business at such place, the good will of which was of the value of $7,000; that defendant, Cornelia Burkhart, wrongfully and unlawfully caused the entrance to plaintiffs' store to be barricaded, precluding plaintiffs from carrying on their business, and that on or about August 5th, through her agents and servants, she wrongfully, and unlawfully, and maliciously, without the consent and against the protest of plaintiffs, broke into the said store building and took possession thereof, together with plaintiffs' personal property therein, particularly described in the complaint. That thereafter defendant did unlawfully, and wrongfully, and maliciously "take and carry away and convert to her own use all of said personal property, goods, wares, and merchandise, *** of the reasonable value of $70,419.73, from the said building, No. 147 Second street, and from the possession of the plaintiffs, and ever since has held and does still hold and retain possession thereof from the plaintiffs, to their damages in the sum of $70,419.73." As a separate cause of action, which has been abandoned plaintiffs allege in detail that defendant unlawfully and wrongfully and maliciously caused the said storeroom and store building to be demolished and destroyed, to their damage in the sum of $5,000. Defendant, by her answer, denies the material allegations of the complaint as to the first cause of action, and in answer to the second cause sets forth the acts of the officers of the city, concerning the building, and her connection therewith, which are denied by the reply.

From the findings of facts made by the trial court, upon which plaintiffs rely for judgment in their favor, it appears that on August 14, 1907, the plaintiffs were, and for many years had been, partners, conducting a Chinese mercantile business in the brick building described; that, on account of the dangerous condition of the building, about July 27, 1907, the Portland building inspector, acting under a city ordinance served notice on the owner, defendant, Cornelia Burkhart, and the plaintiffs, to remove the same within five days. No action was taken by the city council, condemning the building as unsafe or a nuisance, and the plaintiffs, the owners and in possession of goods, wares, and merchandise in the building, of the total value of $40,000, challenged the right of the inspector to make such an order, refusing to vacate the building, or to remove their stock of merchandise therefrom. Subsequently defendant, Burkhart, requested them to remove their goods, so that, in obedience to the notice from the inspector, the building could be torn down, but they persisted in their refusal so to do, and about August 14th defendant entered the store, or caused it to be entered, and took into her possession, and out of the possession of plaintiffs, the merchandise in question, and had the whole thereof transferred to the warehouse of the Oregon Auto Despatch Company, where the defendant caused the same to be stored.

Upon receiving the goods, the Oregon Auto Despatch Company delivered to defendant, Burkhart, its warehouse receipt therefor, the substance of which is as follows: "Oregon Auto Despatch, Successor to Wakeman & Morse Transfer Company. Moving, Packing and Shipping. Duplicate. Warehouse 43 1st Portland, Ore., Aug. 14, 1907. Received in store from Mrs. Cornelia Burkhart, Act. Hung Shun Co., pkgs. No. 1 to 212 matts rice, pkgs. No. 1 to 634 Chinese mdse. store fixts. & c. (Miscellaneous.) Cash 26.06. Received for the account of Mrs. Cornelia Burkhart the goods enumerated in the above schedule for storage upon the following terms and conditions." Here follow several printed provisions of the receipt, not deemed material in this opinion, ending as follows: "This warehouse receipt and a written order shall be presented when any goods are to be withdrawn. Goods will be delivered only upon receipt of a written order signed by the person in whose name they are stored. One day's notice is required for access to or delivery of goods. A labor charge will be made for packing and repacking. (This warehouse receipt must be returned when all goods enumerated in the schedule are withdrawn.) Notice.--No goods delivered except on production, delivery and cancellation of warehouse receipt and payment of all charges. Rate of storage, $50.00 for each month or part of a month. Cartage in $....... Packaging $....... Charges advanced $....... Moved in by ............. Checked by ............. Received warehouse receipt ............ for above list of goods. Packed by ............. Signed ............. Oregon Auto Despatch. Address ............. Successor to Wakeman & Morse Transfer Co., by J.H. Coate." A duplicate of this receipt defendant placed upon the desk of W.J. Makelim, then acting as plaintiffs' attorney, requesting that it be delivered to plaintiffs. The duplicate receipt was not at any time indorsed by defendant.

The court further found that, by reason of said taking and removal of merchandise, plaintiffs' entire business had been and is wholly destroyed; that the merchandise is still stored in the warehouse, neither defendant Burkhart nor the warehousemen having redelivered or offered to redeliver the same to plaintiffs; and as conclusions of law the trial court found, among other things, that the action of the building inspector, in pretending to condemn the building, was without authority of law, and void, for the reason that no action had been taken by the city council, condemning the building, and that the ordinance of the city, purporting to confer power upon the inspector to condemn and order buildings destroyed, is void. "That the action of the defendant, Cornelia Burkhart, in entering plaintiffs' said store *** and carrying away from the lawful possession of the plaintiffs the whole of said stock of merchandise, and causing the same to be transported from said store to said warehouse in said city of Portland, Or., and in causing the same to be stored in said warehouse and subjected to certain liens for the cost and expense of its transportation from said store to said warehouse, and to a further lien of $50 per month for the storage of said merchandise so long as the same should remain therein, was unlawful and wrongful; but that said actions of said defendant, Cornelia Burkhart, did not and do not constitute a conversion of said goods by said defendant, and that said defendant is entitled to have the complaint herein dismissed, and to recover her costs and disbursements incurred in said action."

Rufus Mallory, John M. Gearin (Dolph, Mallory, Simon & Gearin and W.J. Makelim, on the brief), for appellants.

William M. Cake (Cake & Cake, on the brief), for respondent.

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

Plaintiffs assign error of the court in holding as a conclusion of law that, upon the facts found and stated, the acts of defendant did not constitute a conversion of the goods, and that plaintiffs' complaint should be dismissed. Before the court made or filed its findings, plaintiffs requested it to find, as part of its conclusions of law, that defendant was guilty of conversion of the goods, and that they were entitled to judgment for the value thereof. The findings of fact made by the trial court stand in the place of the verdict of a jury. Plaintiffs contend that these findings show that the property in controversy was wrongfully and unlawfully taken from their possession, without their consent and against their protests, and has never been returned or tendered, but is held in pursuance of defendant's orders and directions, and subject to her control, without color of right, out of the possession, control, or dominion of plaintiffs, and that this is a conversion.

The findings of facts and conclusions of law of the lower court are the basis of this appeal, and upon the facts so found the question is raised squarely as to whether or not they constitute a conversion of the property, and entitle plaintiffs to recover from defendant. Upon this point the trial court found that the defendant, "without the consent and against the protest of the plaintiffs, seized and took into her possession, and out of the possession of the plaintiffs, the whole and every part of said merchandise, and carried the same away from said building and from plaintiffs' possession," and that while so in possession of said merchandise defendant, without the permission or consent and against the protest of plaintiffs, caused said merchandise to be stored in a certain warehouse on account of Hung Sun & Co., plaintiffs, taking a warehouse receipt therefor, a duplicate of which was left at the office of one of the attorneys for plaintiffs with the request that it be delivered to them.

"A conversion, in the sense of the law of trover, consists either in the appropriation of the thing to the party's own use and beneficial enjoyment, or in its destruction, or in exercising dominion over it, in exclusion or defiance...