Sabin v. Chrisman

• Decision Date: 25 October 1918
• Citation: 90 Or. 85,175 P. 622
• Parties: SABIN v. CHRISMAN, SHERIFF, ET AL.
• Court: Oregon Supreme Court

175 P. 622

90 Or. 85

SABIN v. CHRISMAN, SHERIFF, ET AL.

Supreme Court of Oregon

October 25, 1918

Department 2.

Appeal from Circuit Court, Wasco County; W. L. Bradshaw, Judge.

Action by R. L. Sabin against Levi Chrisman, Sheriff of Wasco County, and another. Judgment for defendants, and plaintiff appeals. Reversed and remanded, with directions.

This is an action of damages for a conversion. The cause was tried by the court without a jury, resulting in the findings of fact and conclusions of law and a judgment in favor of defendants. Plaintiff appeals. The facts necessary to an understanding of the case are as follows:

On the 15th day of August, 1914, P. Perlman, who was the owner of a stock of merchandise, including the stoves and ranges involved in this action, transferred the same by deed of assignment to R. L. Sabin, plaintiff, for the benefit of his creditors pro rata. The possession of the property was taken by Mr. Sabin, through his agent, Mr. J. M. Foster, on the following day. The validity of this transaction was passed upon and approved by this court in the case of Sabin v Chrisman et al., 79 Or. 191, 154 P. 908. On August 19 1914, defendant Levi Chrisman, sheriff of Wasco county, Or accompanied by the attorney for the Portland Association of Credit Men, the other defendant herein, proceeded to the store at The Dalles, Or., being then armed with an execution on a judgment in favor of the Portland Association of Credit Men and against P. Perlman, the former owner of the store. They found in the store one J. S. Fine, who was then employed as a clerk by J. M. Foster, the agent of R. L. Sabin. The sheriff was informed of the assignment, and that Mr. Foster was in charge for the assignee. Mr. Foster, who had stepped out for a few moments, returned to the store and protested against the levy. The sheriff then proceeded to levy upon the entire stock in the store, but was induced to levy upon a portion of the goods only; Mr. Foster protesting. The sheriff designated seven cooking ranges, which were in the store already segregated, and placed them in charge of Mr. J. S Fine, whom he knew and had confidence in, to hold for the sheriff, and took a receipt from Mr. Fine, which is as follows:

"The Dalles, Oregon, August 19, 1914.

"Received from Levi Chrisman, sheriff of Wasco county, Oregon, seven steel cooking ranges, levied upon under execution in case of Portland Association of Credit Men v. P. Perlman.

"J S. Fine, Mgr."

The ranges were not removed by the sheriff, nor by the plaintiff or his agents, but remained continuously in the care of J. S. Fine until August 29th, when they were destroyed by fire, together with other property. The loss was not occasioned by any fault of the sheriff or the other defendant, nor of the plaintiff or his agents. The sheriff did not leave with J. M. Foster or J. S. Fine either a copy of the execution or notice specifying the property levied upon. The defendant sheriff testified in regard to the levy that:

"He [Foster] came back and said the stock was in their hands, and wanted to know if I could not levy on sufficient property to cover the execution without locking the store up; and I told them I would, and I took possession of a number of ranges. Q. Just tell what you did, Mr. Chrisman. * * * A. The receipt shows for itself; that is what I did"

--and stated to the effect that Fine was holding the property in question for him as the receipt showed. It is admitted that at the time of the alleged levy the personalty in question was of the value of $225.50, and that Sabin was the owner and entitled to the possession of the property. The trial court made findings of fact to the purport as above stated, and found as conclusions of law: That the acts of the sheriff, Levi Chrisman, as hereinbefore set forth, did not constitute a levy, and did not operate to dispossess the plaintiff, R. L. Sabin, or his agents, of said goods and chattels, and:

"That the acts of said Levi Chrisman and Portland Association of Credit Men, or either of them, as hereinbefore set forth, did not constitute a conversion; that the defendants are not liable to the plaintiff in any sum whatsoever, and said action should be dismissed."

A judgment was rendered accordingly.

Sidney Teiser, of Portland (Teiser & Smith, of Portland, on the brief), for appellant. Maurice W. Seitz, of Portland, for appellees.

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

Plaintiff takes the position that, in view of the fact that the property was not the property of the judgment debtor (citing Sabin v. Chrisman et al., supra), the sheriff's taking possession of and assumption of control over the ranges, and his interference with plaintiff's dominion over the property, constituted a conversion; and, as the property had never been returned to him by the sheriff or the other defendant, he was entitled to damages to the extent of the value of the property, notwithstanding the same had been destroyed by fire. The defendants contended: First, that the acts of the sheriff did not constitute a valid levy, or give the sheriff any jurisdiction over the property, or change possession thereof; second, that, even if the acts of the sheriff could be called a levy, it was a mere paper levy, and insufficient to constitute a conversion; that, the goods having been left in the actual possession of the agents of plaintiff, their subsequent destruction by fire without fault or dereliction on the part of defendants does not furnish ground for any liability against either of them.

As we understand it, it is not a question as to whether or not the levy of the execution on the judgment against Perlman by the defendant sheriff created a lien on the property. In order for the levy to have had such an effect, the property must have belonged to Perlman. The question for determination here is: Did the sheriff and the plaintiff in the writ commit a trespass on Sabin's property by wrongfully interfering therewith, in a manner subversive of the rights of plaintiff, who was the owner of the personal property, to his injury? In 38 Cyc. 2005, it is said:

"Conversion is 'an unauthorized assumption and exercise of the right of ownership over goods or personal chattels belonging to another, to the alteration of their condition or the exclusion of an owner's rights.' The legal wrong denominated 'conversion' is any unauthorized act of dominion or ownership exercised by one person over personal property belonging to another, and 'trover' is the tecnical name of the common-law action provided for the redress thereof."

Under no other rule can a person be protected in his right to property. In Budd v. Multnomah Street Ry. Co., 12 Or. 271, 7 P. 99, 53 Am. Rep. 355, the court said:

"The wrong lies in the interference with the owner's right to do as he will with his own. Whoever does this in any manner subversive of the owner's right to enjoy or control what is his own is guilty of a conversion."

See, also, 2 Cooley on Torts (3d Ed.) p. 859; Ramsby v. Beezley, 11 Or. 49, 51, 8 P. 288; Madden v. Condon National Bank, 76 Or. 363, 149 P. 80; Gregory v. Oregon Fruit Juice Co., 84 Or. 199, 202, 164 P. 728; Velsian v. Lewis, 15 Or. 539, 16 P. 631, 3 Am. St. Rep. 184; Scott v. Perkins, 28 Me. 22, 48 Am. Dec. 470; note to Bolling v. Kirby (Ala.) 24 Am. St. Rep. 789; Wintringham v. Lafoy, 7 Cow. (N. Y.) 735; Connah v. Hale, 23 Wend. (N. Y.) 462; Phillips v. Hall, 8 Wend. (N. Y.) 610, 24 Am. Dec. 108; Allen v. Crary, 10 Wend. (N. Y.) 349, 25 Am. Dec. 566; Fonda v. Van Horne, 15 Wend. (N. Y.) 631, 30 Am. Dec. 77.

An officer making a levy of an execution may at his own risk deliver property levied upon to a bailee and take a receipt thereof. The goods are regarded as still in the officer's control. 4 Cyc. 661-663; 2 Freeman on Executions, § 262; Palmer-Haworth Logging Co. v. Henderson, 174 P. 531. Where an officer levies a writ of execution on the property of a stranger, the plaintiff in the writ is liable to the owner and person having the right of possession thereof, when he directed the wrongful levy; and such owner has a right of action at once, either for the reclamation of the property or to recover damages, it not being...