W.W. Kimball Co. v. Redfield

• Citation: 33 Or. 292,54 P. 216
• Parties: W.W. KIMBALL CO. v. REDFIELD.
• Decision Date: 13 August 1898
• Court: Supreme Court of Oregon

54 P. 216

33 Or. 292

W.W. KIMBALL CO. v. REDFIELD.

Supreme Court of Oregon

August 13, 1898

Appeal from circuit court, Umatilla county; Stephen A. Lowell Judge.

Action by the W.W. Kimball Company against C.E. Redfield. Judgment for defendant. Plaintiff appeals. Affirmed.

This is an action by the W.W. Kimball Company, a corporation, against C.E. Redfield, to recover the possession of a piano. The complaint was filed December 29, 1896, and in it plaintiff alleges, inter alia, in substance: That July 11, 1896, and for a long time prior thereto, it was the owner and entitled to the possession of a certain Hallet & Davis piano, style 21, No. 41,496, then in Umatilla county; that prior to the said July 11, 1896, and while the said piano was the property of plaintiff, the defendant took possession thereof, in said county; that June 11 and December 28, 1896, plaintiff demanded of defendant possession of said piano, but that he refused, and still refuses, to comply with such demands, or either of them, and that ever since July 11, 1896, it has been in defendant's possession, in said county and state that said piano is of the value of $300, and that the defendant still unlawfully and wrongfully retains possession thereof, within said county and state, to the damage of plaintiff in the sum of $50. Upon filing the complaint, the plaintiff caused the said instrument to be seized and delivered to it. The defendant, after denying the material allegations of the complaint, alleges, in substance, that on August 28, 1893, plaintiff delivered to one D.W. Bailey the piano in question, upon a written lease thereof for 21 months, at the rental of $354.85 for the term, which sum was evidenced by Bailey's eight promissory notes, with interest at 8 per cent. per annum from that date; that said lease provided that, if Bailey chose to purchase the piano during the time, he might do so by paying all said notes then unpaid, with interest to the date of such purchase; that about September, 1894, Bailey, in consideration of $300, sold and delivered said piano to defendant, who ever since has been, and now is, the owner and entitled to the possession thereof; that plaintiff extended the payment of Bailey's notes from time to time, and that July 18, 1896, all of them had been fully discharged, except the sum of $44.25, the payment of which had been extended to that time; that defendant tendered said sum to plaintiff on said day, and again December 28, 1896, Bailey's contract being still in full force, but it refused to accept the same, whereupon he brings this sum into court, in full satisfaction of the amount due on said notes. The reply having put in issue the allegations of new matter contained in the answer, a trial was had, resulting in a verdict and judgment to the effect that defendant was the owner and entitled to the possession of the property in controversy, but, if a return thereof could not be had, that he recover the sum of $300, as its value, from which judgment plaintiff appeals, assigning as error the action of the trial court in admitting testimony over its objection, giving instructions excepted to, and refusing to give other instructions asked by it.

J.J Balleray, for appellant.

C.H Carter, for respondent.

MOORE C.J. (after stating the facts).

It is contended by defendant's counsel that the complaint does not state facts sufficient to constitute a cause of action for which reason it would not support a judgment, and hence it cannot complain of the errors assigned. The particular point insisted upon is that the complaint failed to allege that, at the time the action was commenced, plaintiff was entitled to the immediate possession of the property sought to be recovered. The common-law action of replevin has been abolished in this state, and a new remedy substituted therefor, which is known as "claim and delivery," but no material changes in the old form of action have been inaugurated by the more recent procedure. Hill's Ann.Laws Or. § 132 et seq.; Moser v. Jenkins, 5 Or. 447; Surles v. Sweeney, 11 Or. 21, 4 P. 469; Guille v. Wong Fook, 13 Or. 577, 11 P. 277. It has been repeatedly held, in replevin, that the right to the immediate possession of the chattels in controversy, at the time of bringing the action, is essential to the recovery, and that such right, to be available, must continue in full force until the judgment is obtained in rem for such property, or in personam for its value and damages for its detention. Wells, Repl. § 94; Cobbey, Repl. § 94; 20 Am. & Eng.Enc.Law, 1046; Britt v. Aylett, 52 Am.Dec. 282; Collins v. Evans, 15 Pick. 63; Dodworth v. Jones, 4 Duer, 201; Wyman v. Dorr, 3 Greenl. 183; Ingraham v. Martin, 15 Me. 373; Noble v. Epperly, 6 Ind. 414; Frizell v. White, 27 Miss. 198; Cassel v. Stage Co., 12 Iowa, 47; Campbell v. Williams, 39 Iowa, 646; Marshall v. Bunker, 40 Iowa, 121; Peterson v. Lodwick, 44 Neb. 771, 62 N.W. 1100; Campbell v. Quinton, 4 Kan.App. 317, 45 P. 914. In Affierbach v. McGovern, 79 Cal. 268, 21 P. 837, an action was commenced December 15, 1884, to recover certain personal property, the complaint averring that plaintiff was the owner and entitled to the possession thereof August 12, 1880. No demurrer to this pleading was interposed, and a trial, being had, resulted in a judgment for plaintiff; whereupon the defendant appealed, contending that the complaint did not state facts sufficient to constitute a cause of action. In reversing the judgment, Mr. Justice Works, speaking for the court, says: "A complaint, to be good, must show a cause of action in favor of the plaintiff, and against the defendant, existing at the time the action is commenced. This complaint does not show this, but, if it states a cause of action at all, shows that it existed more than four years before the commencement of the suit, and for that reason the complaint is clearly bad." In Fredericks v. Tracy, 98 Cal. 658, 33 P. 750, an action was commenced November 19, 1890, to recover certain goods and chattels, plaintiff alleging that November 17, 1890, he was the owner and entitled to the immediate possession of the property sought to be recovered, and that on the latter date he demanded of defendant possession of said goods and chattels, but that the latter refused to deliver the same, and unlawfully withheld possession thereof. A demurrer to the complaint, on the ground that it did not state facts sufficient to constitute a cause of action, having been overruled, one of the defendants thereupon answered, averring that November 18, 1890, he purchased the property in question from his co-defendant. Judgment for plaintiff having been rendered, the court, in reviewing it, say: "To sustain this action, plaintiff must have the right to immediate and exclusive possession at the time of the commencement of his suit. It is a cardinal principle in pleading that ultimate, and not probative, facts are to be pleaded. The ultimate fact in such an action is that plaintiff was at the time the action was commenced the owner of, or had some special property in, the chattel, coupled with a right to the immediate possession thereof. The fact that he was the owner and entitled to the possession at a previous date is evidence from which the ultimate fact may be deduced, upon the principle that 'a thing once proved to exist continues as long as is usual with things of that nature.' Code Civ.Proc. § 1963, subd. 32. This principle, however, has no application to the statement of facts in a pleading. Alden v. Carver, 13 Iowa, 253." In Holly v. Heiskell, 112 Cal. 174, 44 P. 466, judgment in an action of replevin having been rendered against defendant, he appealed, contending that there was no averment in the complaint that plaintiff was the owner or entitled to the possession of the property in question at the time the action was instituted. In reversing the...