83 P. 847 | Or. | 1906
delivered the opinion of the court.
This is an action upon an undertaking given by the respondents-for the redelivery of certain hops, attached as the property of one Phil Neis in an action against him brought by one Estelle Mayer, in which action the appellant herein was substituted as plaintiff. The respondents claimed to own the property attached, and from a judgment in their favor this appeal is taken.
On January 30, 1902, Estelle Mayer commenced an action in the circuit court of Multnomah County against Phil Neis to recover upon a promissory note, and filed her affidavit and undertaking for an attachment, and caused a writ of attachment to be issued, under which the sheriff of that county attached two warehouse receipts, representing 179 bales of hops, as the property of the defendant Neis. The respondents, Chas. Koss & Bros. Co. and Baumbach, Reichell & Co., both eastern corporations dealing in hops, claiming to be the owners of the hops attached, gave to the sheriff an undertaking for redelivery thereof, with the American Surety Co. as surety thereon. The warehouse receipts and hops were then delivered to the respondents. In March following the defendant Phil Neis was declared a bankrupt, and the appellant herein, A. F. Flegel, was elected his trustee in bankruptcy, and by order of the
The real issue in this case was as to who owned the hops at the time they were attached. The record shows that on January 30,1902, and for several years prior thereto, Phil Neis, under the trade name of Phil Neis & Go., had been acting as agent for the respondents, Chas. Koss & Bros. Co. and Baumbach, Peichell & Co., in buying hops, and also purchased hops on commission for other persons, for which they paid him a commission of one half cent a pound for all hops bought. On January 30, 1902, Neis bought of Balfour, Guthrie & Co. 179 bales of hops for -$3,973.68, and gave in payment therefor his check, signed “Phil Neis & Co.” for that amount, and the agent of -Balfour, Guthrie & Co. indorsed upon the two warehouse receipts representing this amount of hops, the following words : “January 30, 1902. Deliver the within hops to Phil Neis & Co. Balfour, Guthrie & Co.” The delivery of this check to
The appellant claims that the purchase of these hops by Neis and payment therefor by his check, drawn upon his own bank account, together with the indorsement of the warehouse receipts to him, made Neis the owner of the receipts and the hops; and,' further, that, if he was not the owner of all the hops, he was the owner of all except the 70 bales purchased by him with the $1,662.50 received upon the draft from Chas. Koss & Bros. Co. on the day of the purchase of the hops, for the reason that the purchase price for the remaining portion of the hops was paid out of funds standing in the name of Neis received from other sources. On the other hand, the respondents claim that Neis never owned the hops, but, acting as agent, had bought them for the respondents, Chas. Koss & Bros. Co. and Baumbach, Reichell & Co. — 136 bales for the former, and 43 bales for the latter. There is evidence that during the year 1901 each of these respondents last named sent money to Neis with which to buy hops, and that he erroneously represented to them that he had bought
The judgment of the lower court is therefore affirmed.
Affirmed.