Mogul Transportation Co. v. Larison

• Decision Date: 27 May 1947
• Citation: 181 P.2d 139,181 Or. 252
• Parties: MOGUL TRANSPORTATION CO. <I>v.</I> LARISON
• Court: Oregon Supreme Court

181 Or. 252

181 P.2d 139

MOGUL TRANSPORTATION CO.v.

LARISON

Supreme Court of Oregon.

Argued May 5, 1947.

Affirmed May 27, 1947.

Equity — Claim and delivery — Jurisdiction

1. Where defendants, in action in claim and delivery for recovery of possession of motortruck and for damages, interposed equitable defenses, and the whole cause was submitted by all parties to the equitable forum, and none of the parties demanded a jury trial, court of equity had jurisdiction to grant complete relief.

Sales — Title

2. In a cash sale of personalty, payment and delivery are concurrent acts, and title to the personalty does not pass until payment, and, if the buyer has taken possession without paying the price, the seller, unless he has waived concurrent payment, may reclaim the property if, in the interim, rights of innocent third persons have not intervened.

Evidence — Judicial notice — Maximum price

3. Where original engine of used truck was removed, and a Diesel engine was substituted and structural and other changes were effected, so that use of a complicated formula was necessary to arrive at the maximum sale price permissible for such truck under regulations, and court was not requested to take judicial notice of the maximum price for the truck, court was not obliged to do so on its own motion. O.C.L.A. § 2-502(3); Federal Register Act, § 7, 44 U.S.C.A. § 307.

Appeal and error — Hearing — De novo verdict — Not conclusive

4. On appeal from decree in equitable case, the hearing before the Supreme Court was de novo, and jury's verdict was not conclusive on the Supreme Court, but Supreme Court could not disregard the verdict or hold the facts to be to the contrary, unless the verdict or facts were clearly against the evidence.

Sales — Evidence

5. In action in claim and delivery to recover a motortruck and for damages, wherein defendant set up defense that he had agreed to pay the maximum ceiling price but that plaintiff sought to recover a much greater price, evidence sustained finding that agreed price for the truck was the greater amount as contended by plaintiff and not the alleged maximum price as claimed by defendant.

Witnesses — Cross examination

6. Whether to permit defendant to cross-examine plaintiff's witnesses in order to show that when witness, on plaintiff's behalf entered into contract of sale, it was illegal because based on a price exceeding maximum ceiling price, was discretionary, over objection of plaintiff that defendant was attempting to establish an affirmative part of his case on cross-examination of plaintiff's witness. O.C.L.A. § 4-708.

Contracts — Defense — Illegal contract

7. In action in claim and delivery to recover a motortruck and for damages wherein defendant set up defense that he had agreed to pay the maximum ceiling price but that plaintiff sought to recover a much greater price, court was not required to exclude all evidence in support of plaintiff's right to recover, on ground that recovery was based on an illegal contract and the parties were in pari delicto, since plaintiff's case was founded rather on repudiation of the contract than on an affirmance thereof.

Automobiles — Certificate of title — Possession — Disputable presumption

8. Proprietors of garage were not liable in action in claim and delivery to holder of certificate of title to truck which had been brought into the garage by another, for refusing to turn the truck over immediately to the holder of the certificate of title, where proprietors refused only to turn over possession until they determined their rights, and holder of certificate of title brought action on the same or the following day, since certificate of title was prima facie evidence only of ownership, and possession of truck by third person gave rise to a disputable presumption that third person owned the truck. O.C.L.A. §§ 2-401, 2-407(11), 115-114.

Interpleader — Sufficient pleading

9. In action in claim and delivery against proprietors of garage to recover possession of motortruck, proprietors' answer, alleging that they had no knowledge or information sufficient to form a belief as to whether the plaintiff owned the truck, and that third person, who had brought the truck into the garage, claimed ownership of the truck, was sufficient pleading to entitle proprietors to the equitable remedy of interpleader.

Interpleader — Concurrent and cumulative remedy

10. The statutory remedy of interpleader does not oust courts of equity of their jurisdiction in the interpleader, but is merely a concurrent and cumulative remedy. O.C.L.A. § 1-314.

Interpleader — Claim and delivery — Interpleader — Order

11. In action in claim and delivery against proprietors of garage and another to recover possession of motortruck, proprietors of garage who set up in their answer the equitable remedy of interpleader should have offered, in their affirmative answer, to bring the truck into court to abide its decision and should have protected themselves by securing an order passed pursuant to their offer. Pleading — No reply — New matter waived

12. Where no reply was filed to new matter in defendants' answer, but the issues thereby sought to be raised were contested on the merits, a reply was waived.

                  See note, 43 A.L.R. 172; note, 113 A.L.R. 259; 6 Am. Jur. 408
                12 Am. Jur. 655; 30 Am. Jur. 226; 55 C.J., Sales, § 905
                

Appeal from Circuit Court, Union County.

R.J. GREEN, Judge.

S.H. Burleigh, of La Grande (Dixon & Burleigh and R.D.H. Swindley, of La Grande, on brief) for appellants.

Colon R. Eberhard, of La Grande (Cochran & Eberhard, of La Grande, on brief) for respondent.

Before ROSSMAN, Chief Justice, and LUSK, BELT, HAY and WINSLOW, Justices.

AFFIRMED.

HAY, J.

Plaintiff, a corporation, brought this action in claim and delivery against G.L. and J.S. Larison, doing business as Paul Bunyan Co., and John Tocco, doing business as Tocco Truck Lines and as Superior Motor Freight, for the recovery of possession of a motor truck and for damages.

The complaint is in the usual form. The Larisons answered by general denial, and, affirmatively, that they operate a repair and machine shop; that defendant Tocco left the truck in their shop for the purpose of having certain work done thereon; that someone claiming to represent plaintiff demanded possession of the truck; that Tocco refused to permit Larisons to surrender it to anyone but himself; that Larisons claim neither ownership nor right of possession, are indifferent as between the respective claimants, and are ready to surrender the truck to whoever is legally entitled thereto.

Tocco's answer was a general denial (with certain formal admissions). Affirmatively, seeking equitable relief, he alleged that, on or about June 25, 1945, he offered to buy and plaintiff agreed to sell the truck in question, for the amount of the OPA ceiling price thereon less expense of necessary repairs; that at that time neither party knew the ceiling price; that, relying upon such agreement, he caused repairs to be made upon the truck and new parts to be installed thereon, at an expense of approximately $1,000; that, about July 10, 1945, he learned from and was informed by "the officers and agents of the OPA" that the ceiling price upon said truck under OPA rules and regulations was $1,500; that he offered to pay plaintiff such sum less the expense of repairing the truck; that plaintiff refused to accept such offer, and suggested to Tocco that he pay "more than the ceiling price" and conceal from the OPA the fact of such overpayment by pretending that plaintiff had sold him other property to make up the difference between the ceiling price and the amount that plaintiff demanded for the truck; that Tocco refused to pay more than the ceiling price "or to be a party to the illegal acts and conduct suggested by plaintiff"; that he had made commitments and business arrangements based upon possession and use of this truck; that, under present conditions, it is impossible to purchase trucks upon the open market, and that loss of this truck will cause him irreparable injury; that, in any event, if he should be required to surrender possession to plaintiff, he is entitled to an accounting and compensation in respect of the "repairs, parts and betterments" which he has placed upon the truck. He tendered into court the sum of $725, which, he alleged, represented the ceiling price upon the truck less expense of repairs, and prayed for a decree of specific performance of the alleged contract of sale.

Plaintiff, replying, alleged affirmatively that in April, 1945, Tocco offered to buy and plaintiff agreed to sell the truck "as is, without tires, without painting and without gas tank", for the sum of $4,000, on terms of cash before taking possession; that, about May 6 or 7, 1945, through misrepresentation and fraud, he secured possession of the truck, "and has never offered to return or pay for the same except when he made tender into court for $725.00."

The evidence is about as follows: In the latter part of April, 1945, at Echo, Oregon, Mr. W.G. Platts, president of plaintiff corporation, and the defendant John Tocco conferred with respect to purchase of the truck by Tocco. Tocco looked the truck over. Platts testified that Tocco offered $4,000 cash for it "as is"; that Platts took time to consider the offer, and later, about May 5 or 6th, accepted it. Without Platts' permission, Tocco took possession of the truck. Tocco informed Platts that a Mr. Parker in Tacoma was financing his equipment for him, and that he (Tocco) would go with Platts to Tacoma in a few days and get the money from Parker. He failed to do so. About July 4, 1945, Platts had a conversation by telephone with Parker, who said that he would not finance Tocco for the truck. Tocco told Platts that he "couldn't run the truck through his books", and requested Platts to make up a bill "showing the truck at less money, and parts, and so on" that he had furnished. Platts did...