Dooley v. Bank of Baker City

45 P. 780 | Or. | 1896

Opinion by

Mr. Chief Justice Bean.

The court, after charging the jury, in effect, that plaintiff could not recover unless the promissory note of himself and brother to the bank had been paid in full, proceeded to instruct them that if “the plaintiff and Jere Dooley made a promissory note to the defendant, and the defendant thereafter took a chattel mortgage from Jere Dooley upon the stock of goods, the property of the said Jere Dooley, and the defendant thereupon employed the plaintiff to take charge of said property, under the said chattel mortgage, and sell and dispose of the said stock of goods for the benefit of the defendant, and plaintiff did perform said services, for which he seeks to recover, and the amounts arising from the sales of said goods were credited upon said note until it was all paid, except the sum of one hundred and seventy-six dollars; and you further find that the said mortgage provided for the payment of all expenses resulting from the sale of said goods, and the defendant then converted the stock of goods to its own use, and the value of the stock of goods at the time of the conversion was sufficient to have fully satisfied the said note and the amount of plaintiff’s claim, your verdict should be for the plaintiff”; and that if “the defendant employed plaintiff, as in these instructions heretofore indicated, and defendant held a mortgage given by Jere Dooley to secure a note signed as claimed, and said mortgage contained conditions as heretofore stated, and you find that after the payment of all due upon said note, except the sum of one hundred and seventy-six dollars, John J. Dooley offered to pay said sum, and take the stock of goods for his own claim, and leave a balance, and that defendant refused to accept said offer, and that thereafter said goods were taken by Fleischner, Mayer and Company, and sold by the consent of the defendant, to pay an obligation upon which John J. Dooley was not responsible, then your verdict should be for the plaintiff.”

These instructions were in our opinion misleading, outside, the issues in the case, and prejudicial error. The action is for wages alleged to have been earned by the plaintiff under a contract of hiring. That was the only issue for trial, and the questions as to whether the defendant converted the mortgaged property to its own use; the terms and conditions of the mortgage, or the value of the goods at the time of the alleged conversion, if they were so converted, are all wholly inimaterial to any issue in this case; yet by the instructions of the court the verdict is made to depend entirely on the question as to whether the defendant converted the goods to its own use, and, if so, whether their value at the time was sufficient to have satisfied the mortgage debt and plaintiff’s claim, and not on the terms of the contract or agreement between plaintiff and defendant under which the services were rendered. If defendant employed plaintiff and agreed to pay him for his services, or if the law will raise an implied promise to do so from the circumstances of the employment, then he is entitled to recover, otherwise not. But the court, from its instructions, seems to have overlooked the issues made by the pleadings, and allowed the plaintiff to recover on the ground that the mortgage was intended as a security for the payment of the debt secured thereby, and all reasonable expenses incurred by the mortgagee in the sale and disposition of the goods, and if the mortgaged property was of sufficient value to pay the debt and plaintiff’s claim for services, he is entitled to recover in this case, if defendant was guilty of a conversion, whether there was a contract of hiring or not. And in this view the instructions were certainly erroneous. It follows that the judgment of the court below must be reversed, and a new trial ordered. Reversed.