Templeton v. Bockler

• Decision Date: 24 November 1914
• Citation: 144 P. 405,73 Or. 494
• Parties: TEMPLETON v. BOCKLER.
• Court: Oregon Supreme Court

144 P. 405

73 Or. 494

TEMPLETON v. BOCKLER.

Supreme Court of Oregon

November 24, 1914

In Banc.

Appeal from Circuit Court, Morrow County; Gilbert W. Phelps, Judge.

Suit for an accounting by F. M. Templeton against Charles Bockler. From a decree for defendant, plaintiff appeals. Reversed.

Sam E. Van Vactor, of Heppner, for appellant. C. E Woodson, of Heppner, for respondent.

RAMSEY J.

In September 1908, the plaintiff owned, in Eastern Oregon, a farm, 3,800 head of sheep, and other personal property. The farm was incumbered with a mortgage for about $12,500. These sheep were in two bands, and the defendant held a mortgage on one band for $5,000 and interest, and the bank of Heppner held a mortgage on the other band for $4,000 and interest. The plaintiff owed other debts amounting to from $1,200 to $2,400 that were not secured. His total indebtedness including interest, was approximately $24,000. The price of sheep was at that time low, and the plaintiff was financially embarrassed, and threatened with a suit to foreclose the mortgage on his farm. The defendant is possessed of financial means, and has had experience in the sheep business. The plaintiff applied to him for assistance in the fall of 1908. The defendant took up the mortgage for $4,000 and interest held by the bank of Heppner, and on November 9, 1909, the plaintiff executed to him a new chattel mortgage on all of the plaintiff's said sheep for the amount of the mortgage that he had on part of said sheep, and also for the amount of the mortgage that the bank of Heppner held as stated supra, the new mortgage being executed for $10,085 that being the total amount of said two mortgages, with accrued interest. This new mortgage was executed in lieu of the other two mortgages, and it bore interest at the rate of 10 per cent. per annum. The complaint sets out substantially the facts stated supra. The complaint alleges, in substance, also:

"That on or about December 20, 1908, the plaintiff, being in debt as above stated, it was mutually agreed by and between the plaintiff and the defendant, that the defendant would assist the plaintiff in the running and handling of said sheep until the same should be marketable, and that thereafter and as soon as said sheep should become marketable the said defendant as trustee for plaintiff would sell and dispose of said sheep, together with the wool to be shorn therefrom, in the spring of 1909, for the best sum obtainable therefor, and that the proceeds derived therefrom should, by the defendant as said trustee, be applied as follows: First to the payment of the running expenses of said sheep; second, to the payment of the amount due on said promissory note to defendant; third, to the payment of the said unsecured claims hereinbefore mentioned, and reasonable compensation to the defendant for such services. That it was expressly understood and agreed by and between the plaintiff and defendant at said time that after making the payments as above set forth the defendant was to account to plaintiff for any sums of money then remaining in his hands from the sale of said sheep, and pay such sums over to plaintiff. That thereafter and during the year of 1909, the defendant as such trustee and agent of the plaintiff took into his possession the whole of said personal property, together with 55 tons of hay, which plaintiff delivered to defendant under the terms and conditions of said agreement and sold and disposed of the whole thereof, together with the wool shorn from said sheep during the spring of 1909, and received therefor the total sum of about $22,000, the exact amount of which plaintiff is unable to state. That out of the funds so received the said defendant has paid said promissory note, the running expenses of said sheep and a part of the said unsecured claims. That the whole amount so paid out by defendant does not exceed in the aggregate more than $14,000, and that reasonable compensation for the defendant's service as such trustee and agent is the sum of $500, and that after applying the moneys received from said sale in accordance with said agreement there remained in the possession of defendant the sum of about $6,500, which sum was immediately due and owing from defendant to plaintiff. That the defendant, in violation of the terms of his said trust, and with the intent and for the purpose of defrauding the plaintiff, has and does wrongfully and unlawfully retain and convert to his own use the whole of said sum, except the sum of $600 thereof, paid to plaintiff by defendant since the said sale, and prior to the commencement of this suit. That plaintiff is unable to allege the exact amount of money received by defendant for said personal property, or the exact amounts by him paid out on the indebtedness of plaintiff and as running expenses of said sheep, for the reason that the defendant has, at all times since the sale of said personal property, failed and refused to render to plaintiff an account thereof," etc.

The defendant demurred to the complaint, alleging that it does not state facts sufficient to constitute a cause of suit, or to entitle the plaintiff any relief. The demurrer was overruled. The answer denied much of the complaint, but admitted parts thereof, and set up new matter. The answer alleges, substantially, the following as the chief defense:

"That it was mutually agreed by and between plaintiff and defendant that defendant should assist plaintiff in delaying and postponing foreclosure upon said real property and in holding and running said personal property thereon until such personal property could be sold for its reasonable value, which it did not then command; that against the aid and assistance of defendant, plaintiff would put up all of his equity and interest in and to all of said sheep, also all of said horses and hay, and that upon the sale of such personal property as aforesaid, and after payment of the expenses of running said personal property, plaintiff's mortgage and certain unsecured claims, all remaining proceeds from sales and all of the personal property, if any, remaining unsold should belong equally to and be

divided equally between plaintiff and this defendant. That in pursuance of said agreement defendant immediately entered into joint control and direction of said personal property with plaintiff, and advanced about $2,500 in money and pledged his credit for other large sums for the running expenses of said personal property and to meet claims that were a statutory lien against same, and further obligated himself upon an undertaking in the sum of $13,000 to prevent a foreclosure sale of said real property and to procure and retain the use of same for pasturage and for the purpose of raising feed for said personal property, and defendant gave all of his time, labor, and attention to assisting plaintiff in the running and management of said personal property and business from the date aforesaid until about the 7th day of January, 1910, and that during all of said time plaintiff had an equal voice and discretion with the defendant in the running and management of said stock and business and in the disposition of the proceeds derived therefrom. That on or about the 1st day of November, 1909, defendant's note secured by a mortgage on said sheep had, by payments thereon, been reduced to the sum of $6,300; that there were then in the hands of plaintiff and defendant and belonging to said business 1,960 head of ewes, 28 bucks, 1,534 lambs, 20 head of horses, and about 200 tons of hay. That plaintiff thereupon proposed to defendant that defendant accept said 1,960 ewes, 28 bucks, and about 55 tons of hay in full payment of defendant's claim for the balance due upon his note and mortgage, and that defendant accepted such proposition of plaintiff and received and took over said 1,960 ewes, 28 bucks, and about 55 tons of hay in payment of the sum due him upon said note and mortgage. That thereupon and at that time plaintiff and defendant had a full and complete accounting and settlement concerning said business, and that defendant then and there furnished to plaintiff an itemized statement in writing of all sums received and disbursed in the running of said business and personal property from the time defendant entered into joint management thereof to such date of accounting," etc.

The reply admits parts of the answer, but denies other portions thereof. The court below entered a decree in favor of the defendant, dismissing the suit without prejudice, etc.

1. The court below required the defendant to render and present an account, and the account presented showed that he had received, belonging to the plaintiff, in the business referred to in the complaint, the aggregate sum of $11,710.45, and that he had expended for the benefit of the plaintiff in said business items aggregating $11,684.39. He admits owing the plaintiff a balance of $160 which he tendered the plaintiff, before this suit was commenced. The said account stated the items of receipts and of expenditure in detail. The defendant kept an account of the items of said business, but the plaintiff did not do so. The plaintiff did not materially dispute any of the items of said account, but contended that it failed to include any account of the sale of sheep by the defendant to Baxter & Johnson. The defendant sold to Baxter & Johnson, on November 15, 1909, 1,960 head of ewes, 55 tons of hay, and 28 bucks for $10,400, and took notes and mortgages for said sheep in his own name. The defendant admits that those sheep belonged to the plaintiff at one time. The plaintiff, as shown supra on November 9, 1908, mortgaged to the defendant 3,800 sheep to secure the payment of said $10,085. The sheep sold to Baxter & Johnson, in November, 1909, are a...