Reinstein v. Roberts

• Decision Date: 05 December 1898
• Citation: 34 Or. 87,55 P. 90
• Parties: REINSTEIN v. ROBERTS et al.
• Court: Oregon Supreme Court

55 P. 90

34 Or. 87

REINSTEIN v. ROBERTS et al.

Supreme Court of Oregon

December 5, 1898

Appeal from circuit court, Polk county; George H. Burnett, Judge.

Action by M. Reinstein against G.A. Roberts and others. From a judgment in favor of defendants, plaintiff appeals. Reversed.

This is an action to recover 192 bales of hops, or the value thereof in case delivery could not be had, and damages for their detention. After the action was commenced, plaintiff obtained possession of 145 bales of the property sought to be recovered upon his claim for the immediate delivery thereof. The defendants denied the material allegations of the complaint, and alleged that they were the owners and entitled to the possession of the hops so obtained by plaintiff, which were of the reasonable value of $1,721.24, and that by reason of the unlawful taking they had sustained special damage in the sum of $500. These allegations of new matter having been denied, a trial was had, at which plaintiff, to sustain the allegations of the complaint, offered in evidence a chattel mortgage executed by defendants to him September 9, 1895 which recited a loan of $250 and guarantied such further advances as might be necessary, not exceeding the sum of $1,750, in consideration of which they covenanted to care for and cultivate during the year 1895 the crop of hops growing upon three parcels of land in Polk county, described as follows: "All three pieces situated upon that part of the donation land claim of James Morris and Sarah Morris, his wife, Not. No. 115, and Cl. No. 39, in T. 7 S., R. 4 W Willamette meridian; running thence west 2.59 rods; thence north 80 rods to the place of beginning,--containing 129.35 acres, more or less; 53 acres being set out to hops." The defendants also covenanted to harvest, dry, and bale said hops, and not later than October 5, 1895, deliver the same to plaintiff, that he might dispose of them, and reimburse himself out of the proceeds for advances, charges, and expenses, including a commission of 1 cent per pound upon the entire crop. Said mortgage was conditioned that, if defendants kept and performed the covenants therein, it should be void. The court sustained an objection to the introduction of the mortgage in evidence on the ground that it was incompetent, irrelevant, and immaterial, to which ruling an exception was saved. The court also refused to permit plaintiff to answer the following questions, viz "Are you acquainted with the crop of hops described in the instrument just offered in evidence?" "Where were the said hops growing when you entered into this contract?"--to which action plaintiff's counsel excepted. In submitting the cause to the jury, the court instructed them to find that the defendants were entitled to the recovery of the hops taken from them by plaintiff, or, if delivery thereof could not be had, that they recover from him the sum of $1,671.15, as the value thereof, to which charge an exception was saved; and, judgment having been rendered on the verdict returned in accordance with such instruction plaintiff appeals.

J.J. Daly and A.F. Flegel, for appellant.

R.P. Boise and J.A. Sibley, for respondents.

MOORE J. (after stating the facts).

The action having been commenced after the expiration of the time in which defendants agreed to deliver the hops, and the complaint having alleged that plaintiff was the owner and entitled to the possession thereof, the questions presented for consideration are whether a chattel mortgage, after default, is evidence of the mortgagee's ownership of the property therein described; and, if so, was the mortgage in question, as between the parties thereto, sufficiently definite in description to let in parol testimony to identify the property and prove the ownership? The law is settled in this state that a chattel mortgage is a conditional sale of personal property, and that after a breach of the conditions the mortgagee has a qualified ownership of the property hypothecated to him as security for the payment of a debt or the performance of an obligation. Machine Co. v Campbell, 14 Or. 460, 13 P. 324; Hembree v. Blackburn, 16 Or. 153, 19 P. 73; Marquam v. Sengfelder, 24 Or. 2, 32 P. 676. It has also been held that, under an allegation of absolute ownership, the mortgagee of personal property upon default of the mortgagor may maintain an action for its recovery, and claim immediate delivery thereof in such action. Moorhouse v. Donaca, 14 Or. 430, 13 P. 112. It is manifest from these decisions that the complaint stated facts sufficient to constitute a cause of action, and that, a breach of the conditions of the mortgage having occurred, the instrument is sufficient proof of the mortgagee's qualified ownership of the property therein described. The decision of the case must therefore depend upon a...