Woods v. Dixon

• Decision Date: 06 February 1952
• Citation: 193 Or. 681,240 P.2d 520
• Parties: WOODS v. DIXON.
• Court: Oregon Supreme Court

Page 520

240 P.2d 520

193 Or. 681

WOODS v. DIXON.

Supreme Court of Oregon.

Argued and Submitted Jan. 9, 1952.

Decided Feb. 6, 1952.

Laurence Morley, of Lebanon, argued the cause for appellant. With him on the brief were Morley & Thomas, of Lebanon, and Willis, Kyle & Emmons, of Albany.

John A. Boock, of Albany, argued the cause and filed a brief for respondent.

Before BRAND, C. J., and ROSSMAN, LUSK, LATOURETTE and TOOZE, JJ.

LATOURETTE, Justice.

Verdict for the plaintiff in a replevin action. Plaintiff and defendant entered into an oral contract whereby plaintiff agreed to sell and defendant agreed to purchase a certain truck on which there was a balance payable under a chattel mortgage of the sum of $7,950, executed by plaintiff to a third party. The chattel mortgage covered not only the truck but also a Buick sedan, and was payable in installments of $450, there being at the time of the sale a default in payment thereon of the sum of $750. It was agreed between the parties that defendant would pay to plaintiff the sum of $750 and the next two installments, when due, aggregating $900, it being contemplated that the total of $1,650 would be paid by plaintiff to the mortgagee, at which time the mortgagee would release from the chattel mortgage the sedan. It was agreed that the defendant would thereafter keep up the installment payments on the chattel mortgage. At the time the contract was entered into, defendant paid plaintiff $750, whereupon plaintiff gave possession of the truck to the defendant. Plaintiff claims that the defendant failed to pay in the $900, and by reason of such default, he was entitled to recover possession of the truck. He brought replevin action, executed the appropriate affidavit and bond and secured the immediate possession of the truck.

Defendant in his answer denied that the plaintiff was entitled to possession of the truck and counterclaimed for damages for its alleged illegal seizure. The case came on for trial before a jury and plaintiff prevailed. Defendant appeals.

The first and second assignments of error are directed to the court's failure to allow defendant's motion for a directed verdict and the failure to grant defendant's requested instruction to return a verdict in favor of the defendant. It is well settled that a motion for a directed verdict must specify the grounds therefor. No grounds having been stated for either the motion or the requested instruction, we cannot consider these assignments of error. Ingalls v. Isensee, 170 Or. 393, 133 P.2d 614.

Assignment of Error No. III follows:

'The Court erred in refusing to give to the jury defendant's requested instruction No. 5, to-wit: 'If you should find from a preponderance of the evidence that at the time of the payment to plaintiff of the sum of $750.00 by the defendant that the plaintiff agreed to give the defendant a contract in addition to the hand-written instrument given at the time of such payment and that the defendant was demanding such contract prior to the payment of an additional $900.00, then an offer to pay the said sum of $900.00 upon such contract being tendered would not be a conditional or contingent offer and if you should find from a preponderance of the evidence that the defendant or his representatives did make an offer in good faith to pay said sum of $900.00 on or before the 22nd day of June, 1948, and that the defendant was ready and able to pay said sum on or before June 22, 1948, and that the plaintiff refused to accept such payment and to give the defendant any contract then the defendant could not be considered to have been in default or to have violated any contract which might have been entered into and which called for a payment of $900.00 by June 22, 1948, and the plaintiff's repossession of said truck and trailer on June 22, 1948, would have to be considered as being in violation of the defendant's right, even though the sale was conditional and not absolute.'

'To which defendant excepted as follows:

"Mr. Emmons: If the Court please, the exception of defendant is confined to the failure of the Court to give requested instruction No. 5.'

'Which exception was allowed.'

It is seen that the above requested instruction is predicated on an alleged tender, dated June 21, 1948, the same being as follows:

'Mr. Ray Woods

'432 So. Denver

'Albany, Oregon

'Dear Mr. Woods:

'Approximately thirty days ago my client, Dale Dixon, entered into an agreement with you whereby he was to purchase a certain Reo truck owned by you. It was your agreement that if he would assume the balance of $7950.00 which was due on the truck, it would become his property. You were anxious to do this because you were in danger of losing your Buick automobile which was also included in the mortgage. You were especially anxious that the $750.00 payment then due, be paid promptly. Mr. Dixon advanced the $750.00 for you and to date you have failed to give him a contract on the truck, protecting his $750.00, although you have given him possession.

'According to may understanding, there is due on the truck mortgage the sum of $900.00 on June 22nd. You were advised by Mr. Dixon, and are again advised by him, that he is ready, willing and able to pay the said...