Schwarz v. Harris

• Decision Date: 28 July 1913
• Docket Number: 3,095.
• Citation: 206 F. 936
• Parties: SCHWARZ et al. v. HARRIS.
• Court: U.S. District Court — District of Oregon

206 F. 936

SCHWARZ et al. v. HARRIS.

No. 3,095.

United States District Court, D. Oregon.

July 28, 1913

John A Carson, of Salem, Or., for plaintiffs.

Martin L. Pipes, of Portland, Or., for defendant.

WOLVERTON District Judge.

The facts out of which this litigation springs are sufficiently stated in an opinion heretofore rendered in the same cause. See (C.C.) 156 F. 316.

It is clear that, had plaintiffs received the hops from the Chinamen, they would have become indebted to the Chinamen for the purchase price thereof. There is a dispute whether the hops were delivered to the plaintiffs before Kennedy took them. But let us assume that they were not so delivered. Plaintiffs have recovered judgment against Kennedy for their value, and, the action being in trover, the judgment is effective to transfer title as between plaintiffs and Kennedy to the latter, and it stands, as it respects the former, in the place and stead of the hops. It could hardly be urged that the Chinamen would be entitled to their purchase price while plaintiffs had neither received the hops nor realized upon their judgment against Kennedy; for Kennedy might be insolvent, and the plaintiffs would have received nothing in pursuance of their contract with the Chinamen to deliver the hops. So that, until Kennedy has paid his judgment, at least, the Chinamen's claim for the purchase price of the hops against plaintiffs could avail them nothing, and an assignee from them could obtain no greater rights than they had. However, when plaintiffs shall have received the amount of their judgment from Kennedy, there seems no good reason why they should not pay the Chinamen or any one standing in their right; for when has it been decreed in equity that a person shall have something for nothing? In legal effect, the plaintiffs would have the hops, and, having them, why should they not pay for them? If Kennedy wrongfully took the hops from the Chinamen, so that they could not perform their contract with plaintiffs by delivery, why should not the Chinamen be entitled to their purchase price, when the hops have been restored and delivery had? But we have seen that when the plaintiffs have been paid their damages equivalent to the value of the hops, then will the plaintiffs have in legal effect received the hops, and thus will the Chinamen's right to the purchase price be complete.

There is no charge that the Chinamen converted the hops. Nor could they have done so until title was vested in the plaintiffs by delivery. Until so vested, the plaintiffs' right of action against the Chinamen would have been upon the contract, for breach thereof for failure to deliver, and not in tort. So that, under the hypothesis that Kennedy wrongfully took the hops from the Chinamen and thus prevented delivery, the Chinamen would be entitled to recover the purchase price which the plaintiffs agreed to pay therefor whenever the plaintiffs received the full value of the hops which the Chinamen agreed to deliver; and the fact that the plaintiffs had gotten the hops or their value through some one else would not alter the case.

The case is illumined by supposing that Kennedy, after taking the hops, had concluded that he had no right to them, and had voluntarily delivered them to plaintiffs, or that plaintiffs had recovered them from Kennedy by replevin. The plaintiffs could not then avoid payment of their price because the Chinamen did not deliver the hops directly to them. If, on the other hand, there was delivery of the hops to the plaintiffs, and Kennedy took them from plaintiffs, the Chinamen's right of action against plaintiffs for their value would have accrued, and the litigation that afterwards followed between plaintiffs and Kennedy could not have affected that right, because the plaintiffs would have gotten what they contracted for.

Now whatever right the Chinamen...