Brown v. Truax

115 P. 597 | Or. | 1911

Mr. Justice McBride

delivered the opinion of the court.

We are compelled to affirm the judgment in this case.

1. The finding of the probate court that Dye was dead and the appointment of an administrator was, in the absence of any evidence to the contrary, conclusive proof of that fact.

2. We think the evidence tended to show that Denver Charlton had a lien both by agreement and under Section 7452, L. O. L., but not being of record a claim, should have been presented to the administrator before any attempt was made to foreclose. In Teel v. Winston, 22 Or. 489 (29 Pac. 142), this court held that a mortgage claim against real property could be foreclosed without presentation and the authorities are fairly uniform that mechanic’s lien claims and other claims of record need not be presented for allowance. But claims of the character of the one at bar arising by operation of law or existing in parol, and without any written evidence of their validity, rest upon a different principle'. The mortgage or mechanic’s lien claim is of record, and therefore notice to the administrator of the nature and extent of it, so that he can seasonably prepare to meet it or apply to the court for permission to redeem it. The laborer’s lien claim very often is unliquidated and never necessarily notice to the administrator of its existence or amount. The policy of the law imperatively requires that such claims be presented. By thus presenting them the claimant waives no right whatever, and may thereafter proceed to enforce his lien: Casey v. Ault, 4 Wash. 167 (29 Pac. 1048), is a case in point, and we adopt the reasoning of that case as applicable to this.

3. It follows, therefore, that in attempting to sell the property without first presenting his claim, Charlton committed a wrongful act, and his lien was lost when he parted with possession of the property.

4. If this should be treated as a lien by contract, there could be no sale of the property without a foreclosure by suit in equity. Section 422, L. O. L.

5. Treating it as a laborer’s lien under Section 7452, L. O. L., neither the answer nor the proofs come up to the standard required by this section. The law provides that the laborer shall have a lien for “his just and reasonable charges.” There is nothing in defendant’s answer nor in his evidence alleging or attempting to prove the reasonableness of the sum claimed by Denver Charlton. He relies wholly upon an alleged contract. It is like the case of one who sues upon an express contract and seeks to recover upon a quantum meruit.

6. It is claimed that the court erred in not submitting to the jury the question of the ownership of the wood, but this was conceded in the answer. The defendant attempted to justify by alleging the wood to be the property of Dye, alleging a special property in or lien upon it by virtue of his contract with Dye and services rendered thereunder. The ownership of the property being conceded to be in Dye, and the finding of the county court as to Dye’s death being conclusive in this case, and the appointment of the plaintiff as administrator being shown by the proper record evidence, it was the duty of the court to interpret these documents and ascertain their legal effect, which it did.

7. It is claimed that the court erred in holding that the fact of agency could not be proved by the testimony of the agent, but we do not so understand the ruling. Counsel attempted to prove what H. K. Charlton had said to a witness in relation to the scope of his authority to act for Denver Charlton, when the court said:

“You can’t prove an agency by the agent, can you Mr. Oliver ?”

The remark, taken in connection with what was before the court, was evidently merely an intimation that it was not permissible to prove the unsworn declarations of an agent to establish the fact of his agency. The testimony apparently was allowed to stand, though it was clearly inadmissible. We have treated this case as though the agency of H. K. Charlton was clearly proved, as we think it was; but, giving this fact its greatest effect, it could make no difference in this case.

It is urged that Brown stood by and permitted defendant to purchase the wood, and that thereby he is estopped from now claiming it, but no such estoppel is pleaded or proved. Plaintiff did no act calculated to mislead defendant, nor is there any testimony that he even knew that the sale was to be made.

8. It is contended that the witness Seaman was not qualified to testify as to the market value of the wood. He testified that he was the station agent at Kamela; that he had not dealt in wood himself; that he knew its market value; that he heard it every day; that he heard people making bargains on a number of occasions, though he had made none himself. We think this was sufficient to qualify him; besides, the jury fixed the price of the wood at $4.00 per cord, the lowest price quoted by defendant’s witnesses.

9. It is also claimed that plaintiff cannot recover in this action by reason of having failed to allege and prove demand upon defendant for the property. The act of Charlton in selling the wood being a wrongful act, defendant’s possession was wrongful, and no demand was necessary: Surles v. Sweeney, 11 Or. 21 (4 Pac. 469).

10. Moreover, the defendant in his answer claims the title to the property, and, where such is the condition of the pleadings, no proof of demand is necessary: Smith & Co. v. McLean, 24 Iowa, 322; Homan v. Laboo, 1 Neb. 204; Shoemaker, Miller & Co. v. Simpson, 16 Kan. 43.

11. It is contended that the judgment of the court in the contempt proceeding is a bar to this action, but it cannot have this effect. It was brought in the name of the state and was quasi criminal, and the only valid judgment that could have been rendered was that Charlton was not guilty of the contempt charged. The' court could not in such a proceeding adjudicate any property right. It was not between the administrator and Charlton, but between the state and Charlton, and cannot bind any party to this proceeding.

Finding no error, the judgment of the circuit court is affirmed. Affirmed.