16 Or. 72 | Or. | 1888
This appeal comes here from a judgment of the Circuit Court for the county of Wasco. The respondent commenced an action in that court to recover damages for the conversion of certain personal property. He alleged in his complaint “that on or about the fifteenth day of April, 1885,
The case was tried by jury, who returned a verdict for the respondent for the full value of the property. Judgment was entered thereon, and the appellants appealed therefrom to this court. The appeal was heard here, the judgment reversed, and the cause remanded for a new trial. A report of the case will be found in 14 Or. page 473, which contains the main facts. It was held by this court in that case that, according to the legal effect of certain writings there referred to, the wool in question, and other wool of which it constituted a part, belonged to Joseph Beezley and William Wigle as tenants in common, each of said parties owning a one-half interest therein, subject to a deduction from the gross proceeds of the sale thereof of certain advances made by Joseph Beezley to said Wigle, and that WigleJs interest therein was liable to attachment. It was also there held that the assignments from the successive parties to the respondent, of the right, title, and interest in the sheep, did not transfer to respondent the lease under which the sheep
Joseph Beezley testified that respondent took the sheep under the same terms of the lease, and that he acted as agent for respondent in what he did after the assignment of the sheep. Such testimony was no proof of the fact of the assignment of the ' matters referred to. If Joseph Beezley assigned to the respondent the lease of the sheep to Wigle, and his claim against Wigle for his advances made under the lease, he could certainly have stated when and where the transaction took place, and the particulars concerning it. Proof of such a transaction should not be made by innuendoes, or left to conjecture. Joseph Beezley claiming to have acted as agent for respondent did not tend to prove such assignment. The affair was susceptible of direct proof, and it required that character of proof to establish it.
It would be presumed from the evidence in the case, as shown by the acts of the parties, that the assignment of the interest in the sheep to respondent was only colorable. Joseph Beezley
The ease stands here, so far as I can see, just as it stood when here on the former appeal. There is not a particle of evidence more, showing that the respondent is the owner of the lease and of the advances than there was then, outside of the vague and equivocal statements made by the witnesses referred to, which will be found, upon examination, to contain no substance whatever. It is only by virtue of the ownership of the advances that the respondent is entitled to the interest in the wool claimed. Wigle owned the half interest attached, subject to the
The respondent has no ground of complaint, except for a wrongful conversion of his interest in the property, which would arise only when a sale of it was made. Wigle having had a leviable interest in it would justify the taking of the wool and sale of such interest, and the respondent has no right of action, except for a sale of the excess belonging to him. If, therefore, he made the proof in question, he could not recover upon his present complaint, he will have to count on a conversion as suggested. This would involve the necessity of amending the complaint, which I am inclined to think, under the circumstances of the case at this stage of the proceedings, should not be permitted.
The judgment must therefore be reversed, and the cause remanded to the court below, with directions to dismiss the conn plaint without prejudice.