Mayes v. Stephens

• Decision Date: 25 March 1901
• Citation: 64 P. 319,38 Or. 512
• Parties: MAYES v. STEPHENS. [1]
• Court: Oregon Supreme Court

64 P. 319

38 Or. 512

MAYES v. STEPHENS. ^[1]

Supreme Court of Oregon

March 25, 1901

Petition for rehearing. Overruled.

For former opinion, see 63 P. 760.

MOORE, J.

A petition for rehearing having been filed by the defendant, it is contended therein that, if the allegations of new matter in the reply did not constitute a departure, evidence of plaintiff's special property in the boiler was admissible under the allegation of ownership in the complaint, and, this being so, the action of the court in striking out such new matter was immaterial, and that, no competent evidence of said special property having been offered at the trial, no error was committed in rendering the judgment of nonsuit. Neither the promissory note nor the chattel mortgage was offered in evidence, but the plaintiff testified that on the day the mortgage was given he took possession of the boiler and held it until the defendant took it from him. In answer to the following question, "Then your claim is that you hold this boiler under the chattel mortgage?" he said, "Yes, sir; and in actual possession of it until that $500 note is paid off, with interest thereon." No objection was made to this method of proving the existence of the note and mortgage, which was clearly substantiated by his testimony, thus obviating the necessity of offering them in evidence; and the proof having shown that the execution of the mortgage was accompanied with the immediate delivery of the boiler to the plaintiff, who continued to hold the actual possession thereof, thus establishing the validity of his lien, no necessity existed for proving that the mortgage had been filed in the clerk's office. Laws 1893, p. 30. By considering plaintiff's testimony as true, and the reasonable inferences deducible therefrom, and invoking the presumption from the proof of the execution of the note that it was still in force (Hill's Ann.Laws, § 776, subsec. 33), six years not having elapsed since it was given, the jury might reasonably have found that the lien of the mortgage subsisted, and that plaintiff was entitled to the possession of the property sought to be recovered, and hence the court erred in not giving such testimony the credit to which it was entitled ( Herbert v. Dufur, 23 Or 462, 32 P. 302; Hedin v. Railway Co., 26 Or. 155, 37 P. 540; Wallace v. Railway Co., 26 Or. 174, 37 P 477, 25 L.R.A. 663), and in rendering the judgment of nonsuit, even if no prejudicial...