173 P. 893 | Or. | 1918
Substantially the following facts appear in evidence: On August 26, 1916, Ed Simmons addressed to the Elgin Forwarding Company and signed the following writing:
“We confirm sale to you of about 3,000 bushels F. F. wheat, basis No. 1 Portland grading (or my entire crop of 80 acres, with reservation of 40 bags for seed and feed) at $1.15 per bushel, f. o. b. warehouse, Joseph, Oregon, Elgin Forwarding Co. to furnish bags and sack twine. Delivery as soon as threshed, 1916. Amount advanced $200.00. ’ ’
Afterwards the plaintiff here commenced an action against J. D. Simmons upon a promissory note and caused an attachment writ to be issued and placed in the hands of Edgar Marvin, the sheriff of the county, with directions to attach the wheat in question as the property of the debtor in the writ. With the writ in his possession the sheriff met Ed Simmons' on his way to Joseph with some of the wheat loaded on wagons, and told him that the wheat was attached and to take it to the Elgin Forwarding Company and have it stored in the name of Edgar Marvin. The officer also made arrangement with Ed Simmons to haul in the rest of the crop and deliver it to the defendant to be stored in Marvin’s name. At the same time the sheriff wrote and sent to the defendant by Simmons the following message:
“Enterprise, Ore., Oct. 31, 1916.
“Elgin Ford. Co.,
‘ ‘ This grain is under attachment and you will please accept it in my name; 2 loads today 70 sacks, and all other that they will haul this week.
“Edgar Marvin/*
Still later Ed Simmons commenced the action of replevin against the sheriff and recovered the usual alternative judgment, the value being assessed at $1,328. Soon after the rendition of this alternative judgment in favor of Simmons against Marvin the latter paid the money value thereby assessed and Simmons by his attorneys accepted the same and satisfied the judgment in full, entering upon the margin of the record of the judgment the following writing:
“State of Oregon,
County of “Wallowa, — ss.
“January 6, 1917.
“In consideration of the payment of the within judgment full and complete satisfaction of the within judgment is hereby acknowledged.”
This was signed by one of the attorneys for Ed Simmons and attested by the county clerk. The satisfaction of the judgment was within the authority of the attorney under Section 1083, L. O. L., reading thus:
“An attorney has authority, * *
“2. To receive money or property claimed by his client in an action, suit, or proceeding, during the pendency thereof, or within three years after judgment or decree, and upon the payment or delivery thereof, and not otherwise, to discharge the claim or acknowledge satisfaction of the judgment or decree.”
The plaintiff here furnished the money with which Marvin satisfied the judgment and the latter indorsed to him the warehouse receipts which the defendant had issued. The plaintiff then presented these receipts to the defendant and demanded possession of the wheat represented thereby. The latter refused to surrender the grain and Davidhizar brought this action resulting in the alternative judgment in his favor against the Elgin Forwarding Company involved in this appeal.
‘ ‘ The more generally accepted rule is that the bailee may not deny the title of the bailor, either by claiming title in himself, or by alleging title in another, subject, however, to the exceptions that the bailee may show as against the claim of the bailor that he has been deprived of the property by process of law, or has yielded possession to one having paramount title, or that he is defending on the title and right and by the authority of a third person.”
None of these exceptions is disclosed by the evidence in the case at bar.
The judgment of the Circuit Court is affirmed.
Appirmep.