La Vie v. Tooze
| Decision Date | 06 February 1905 |
| Citation | 79 P. 413,46 Or. 206 |
| Parties | LA VIE v. TOOZE. |
| Court | Oregon Supreme Court |
Appeal from Circuit Court, Marion County; George H. Burnett, Judge.
Action by George A. La Vie against Walter L. Tooze. From a judgment for defendant, plaintiff appeals. Reversed.
This is an action to recover possession of 40 bales of hops. The complaint is in the usual form. The answer denies the allegations of the complaint except the possession of the hops by the defendant, and alleges ownership and right of possession in him. A trial before a jury resulted in a verdict and judgment for defendant, and plaintiff appeals.
John A. Carson and A.M. Cannon, for appellant.
George G. Bingham, for respondent.
The facts are these: In January, 1902, the plaintiff and one J.R Kaser entered into a contract by the terms of which Kaser bargained and sold and agreed to deliver to the plaintiff 8,000 pounds of hops to be grown by him during the season of 1902 on the farms of Henry and Rhoda Allen, at a stipulated price of 10 1/2 cents per pound. The plaintiff was to advance $80 on or before April 1st for cultivating, and 5 cents per pound on or before September 1st for picking and curing purposes; such advances and interest thereon to be liens on the crop. The hops were to be delivered by Kaser to the plaintiff at the Silverton depot or on board the cars at such time between the 1st and 31st of October as plaintiff might direct, and upon the delivery and acceptance the plaintiff was to pay the balance due thereon. The advances were made as agreed upon, and on October 25th, after the hops had been harvested, cured, and baled, and were in condition for delivery, but while still on the Allen place Mr. Krebs, the agent of the plaintiff, in company with Kaser and Allen, went to the building in which the hops were stored, and what there took place, and the purpose of the parties, is thus detailed by the witnesses: Krebs says he went to the house to inspect, brand, receive, and pay for the hops coming to the plaintiff under the contract with Kaser that Allen was entitled to a certain part of the hops as rent, and went along to see that he received his proper share; that the hops were stored in the first and second stories of the building; that it was agreed between the parties that he should take the hops on the upper floor, and finish out the quantity coming to him from the lower floor that after the division between Kaser and Allen had been made he and Allen weighed Kaser's share of the hops and at his request Kaser marked them with the brand of Krebs Brothers and the number of the lot; that the amount due Kaser was then figured up, Allen acting for him, and he (witness) gave Kaser a check on Ladd & Bush, of Salem, for the amount found due on the contract of sale after deducting advances previously made; that Kaser received such check without objection, and agreed to haul the hops for the plaintiff to Silverton, and to ship them to him at New York; that he (witness) then filled out a shipping bill or receipt, stating the number of bales, the weight and destination, and delivered it, with the check, to Kaser, with directions to have it signed by the agent at Silverton, and take it, with the check, to the bank so that the bank could send the shipping bill or receipt to the Salem bank, where the plaintiffs could obtain possession of it; that the object in inspecting and branding the hops in the warehouse and giving the check to Kaser was to accept them and pay for them at that place, and pass the title to the plaintiff. Mr. Allen testified that Kaser was a tenant of his; that on or about October 25th, Krebs, the agent of the plaintiff, came out to his place to receive or take in the hops he had contracted for from Kaser; that as witness and Krebs were going to the hophouse they passed by where Kaser was sitting, and Krebs said to him that he had come out to "take in" the hops, and Kaser said "Go out to the hophouse, and I will be there," and came in a few minutes; that witness took out the rental due him, and he and Krebs weighed the balance, and Kaser, at Krebs' request, put the brand or mark thereon; that the amount was then figured up, and Krebs gave Kaser a check for the balance due him; that, according to the understanding of the witness, Krebs came out to the farm to receive the hops and close up the transaction; that after he drew the check, and delivered it to Kaser, he instructed him to take the hops to Silverton, have the railroad agent sign a shipping receipt, which Krebs prepared and gave to Kaser at the time, and take it, with the check, to the bank; that nothing was said as to when Kaser should cash the check, and no conditions were attached to its delivery. Kaser testified that Krebs came out to the Allen place, and "we divided my part and Mr. Allen's part, and he inspected mine, and weighed them, and gave me a check for the amount, and told me to deliver them on board the cars at Silverton, and get the shipping receipt signed by the conductor, and I could get my money for them"; that Krebs came out to the place and weighed and marked the hops with the intention, as witness supposed, of getting possession of them under the contract; that witness helped him weigh and mark them, but did not then intend to deliver...
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