Page v. Smith

• Decision Date: 03 May 1886
• Citation: 13 Or. 410,10 P. 833
• Parties: PAGE and others v. SMITH.
• Court: Oregon Supreme Court

10 P. 833

13 Or. 410

PAGE and others v. SMITH.

Supreme Court of Oregon

May 3, 1886

Appeal from Gilliam county.

H.C. Condon, for appellant, James W. Smith.

No appearance for respondents, S.B. Page and others.

THAYER J.

The appellant commenced an action in the court below to recover the possession of a certain safe. The complaint was in the usual form of actions of that character. The respondents answering, denied the allegations of the complaint, and set up as a further defense the following new matter:

"For a second and separate answer defendant alleges that the plaintiffs are estopped from alleging that they are the owners, and entitled to the possession, of the safe, for the reason that, prior to the time that said safe came into the possession of defendant, said plaintiffs made some arrangements or contract with one J. Linder for the sale and delivery to said Linder of the said safe; and that said plaintiffs, in pursuance of said contract of sale, caused the name of said Linder to be conspicuously painted in a permanent manner upon the front of said safe, that being the manner in which it is usual and customary for the names of owners of safes to be affixed, and did ship and deliver to said Linder the said safe; that said safe was seized in attachment as the property of the said Linder in an action in justice's court, in which one August Buckler was plaintiff and said Linder was defendant; the judgment was duly rendered against Linder, and execution issued thereon and that, by virtue of said execution, the safe was duly advertised for sale, and sold to the defendant, who, relying upon the fact that said plaintiffs had caused the name of said Linder to be so affixed to said safe as to indicate that Linder was the owner thereof, and then and there being in ignorance of what the contract between said plaintiffs and said Linder was, was thereby induced to believe, and did believe, that the said Linder was the owner thereof; and then and there this defendant, for a valuable consideration, to-wit, the sum of fifty-five dollars, became the purchaser and owner thereof."

The respondents demurred to the further defense upon the grounds in substance, that the facts therein set forth were insufficient as a defense to the action. The circuit court sustained the demurrer. The case was subsequently tried upon the issue of fact joined therein, and it appears from the transcript that a stipulation of certain facts, signed by the attorneys for the respective parties, was read in evidence upon the trial. A copy of the stipulation is sent here with the transcript, but no bill of exceptions appears to have been settled and filed nor has any authentic statement as to what took place at the trial been sent up. The court found that the respondents were the owners, and entitled to the immediate possession, of the said safe, and adjudged that they recover the possession thereof, or the value in case a delivery could not be had.

The only question which can be considered upon the appeal is the ruling upon the demurrer. The respondents' counsel has produced in his brief what he claims was introduced as evidence upon the trial. It purports to be a copy of a writing addressed to the respondents in their firm name signed by the said J. Linder, requesting the former to ship to the latter a safe, and it contains terms of agreement upon which he was to receive it. Linder was not to permit it to be removed,...