187 P. 627 | Or. | 1920
There is no bill of exceptions. There is no transcript of any of the evidence. We have before us no part of the record made in the Circuit Court, except the pleadings, consisting of an amended complaint, an answer and a reply, and the recorded order allowing the motion for a nonsuit. The pleadings and the order made on the motion for a nonsuit are the only sources of information accessible to us, and our knowledge of what occurred in the Circuit Court is limited to whatever is revealed by that order and those pleadings.
Paragraphs V and VI are as follows:
“That the aforementioned building so owned by said Thompson was standing on leased ground owned by John S. Beall and one Mr. Weaver, who rented it to said Thompson and subsequently to his guardian, until said building was taken and removed by defendant as hereinafter alleged.
“That on or about the 1st of October, 1916, the said defendant, without notice to or knowledge of said Thompson or his guardian, did completely wreck and remove the building so owned by said Thompson as aforesaid, including the fixtures contained therein, and converted the same to his own use and benefit, and erected in the place where said building stood its sign and billboard.”
After alleging in paragraph VII that the reasonable value of the building and its contents at the time of its removal was $500, the amended complaint concludes with a demand for a judgment for $500.
In legal effect the answer admits paragraph IV of the amended complaint.
Referring to paragraph V of the amended complaint the answer is as follows:
“That as to whether or not any of the allegations contained in paragraph V of the amended complaint is true this defendant has no knowledge or informa*505 tion sufficient to form a belief, excepting that defendant admits that John 8. Beall, et al. are, and were at all times mentioned in the complaint, the owners of the ground at the location known as No. 314% East Morrison Street, in the City of Portland, Oregon.”
Paragraph VI is denied, except as alleged in the further and separate answer. Paragraph VII is denied without qualification, and then the defendant sets out a further and separate answer, in which the corporation avers that, as agent of and acting under the direction of John 8. Beall and associate owners of the land, the defendant did in October, 1916, take down a small metal building situated on the land and remove it without damage to it and stored it, together with all the fixtures, in the defendant’s warehouse in Portland “where the same now are and ever since have been, but that as to who is or was the owner of said building, at the time the same was so taken down and removed, this defendant has no knowledge or information sufficient to form a belief”; that prior to October 1, 1916, the defendant leased the land for the purpose of constructing “thereon advertising signs and displays,” and that thereupon and without any knowledge on its part as to the ownership of this vacant building, or the fixtures in it, and under the direction of the owners of the land, the defendant removed the building and fixtures to its warehouse “subject to the delivery thereof to the lawful owner. ” The defendant further alleges that neither the plaintiff nor the decedent was the lessee of the premises “on or after October 1, 1916, nor for some time prior thereto.” The defendant avers that tender and delivery of the building and fixtures “is and will be made to the owner thereof upon proof of such ownership, the same being of no greater value than the sum of $25.”
The following is a transcript of the recorded order allowing the motion for a judgment of nonsuit.
“This cause coming on regularly for trial on this day before the court and a jury, the plaintiff appearing in person by Schmitt and Schmitt, her attorneys, and the defendant appearing by L. A. McNary, its attorney, and the testimony of George M. Smith, a witness for the plaintiff having been taken, and the plaintiff having rested, and the defendant by its attorney thereupon having moved for a nonsuit on the ground of the failure of the plaintiff to allege or prove demand upon defendant for the surrender of the property alleged to have been converted by the defendant to its own use and the court being fully advised upon the said motion:
“It is now therefore ordered and adjudged that the motion of the defendant for a nonsuit against the plaintiff be and the same is hereby allowed, and such nonsuit is granted in favor of the defendant and against the plaintiff herein.”
The plaintiff argues that the judgment must be reversed on ithe theory that the record presented to us necessarily shows that the court sustained the motion for a judgment of nonsuit on the ground “of the failure of the plaintiff to allege or prove demand upon defendant for the surrender of the property,” and that such ruling was necessarily erroneous; while the defendant insists that the judgment must be affirmed for the reason that error must be made affirmatively to appear and, since there is neither a transcript of all the evidence nor any kind of a bill of exceptions it must be presumed that the judgment of nonsuit was properly granted.
In Braithwaite v. Aiken, 3 N. D. 365 (56 N. W. 133, 136), it is said:
“To establish a cause of action in assumpsit, the waiver must be averred either expressly or by the manner of stating the cause of action, for without the waiver no cause of action in assumpsit arises. It is not the wrong which gives the injured party the right to sue on contract; it is the wrong, coupled with the waiver of the tort. The waiver is an indispensable element in the cause of action. ’ ’
The plaintiff contends that she has elected to sue in assumpsit. We shall assume, without deciding, that the complaint complies with the rule announced in Braithwaite v. Aiken, 3 N. D. 365 (56 N. W. 133), and that the action is one in assumpsit rather than one in trover. If when the plaintiff “had completed the introduction of her testimony” there was sufficient evidence to show an actual conversion of the property, and if there was sufficient evidence to sustain every other fact necessary to be proved by her, then the motion for a nonsuit was improperly allowed, if it was granted on the ground that the plaintiff had failed to allege and prove a demand upon the defendant for a surrender of the property, because such a demand was not necessary. But how can we know whether there was evidence showing an actual conversion? It may be that the defendant removed the building rightfully and in such a manner as not to have produced a liability either in conversion or assumpsit for the value of the property. The answer does not assert ownership in the defendant, nor does the corporation
Since it cannot be said, as a matter of law, from an' inspection of the pleadings that the defendant con
The judgment is affirmed.
Affirmed. Behearing Denied.