Geren v. Hollenbeck

132 P. 1164 | Or. | 1913

Mr. Justice Burnett

delivered the opinion of the court.

1, 2. We must accept as a postulate that there was evidence tending to prove that, without the knowledge or consent of the plaintiff, the defendant gave the automobile into the possession of a man who wrecked it. It remains to determine the effect of the subsequent foreclosure of a chattel mortgage upon the car.

The disposition of the property contrary to the terms of his. custody thereof, whereby the property was destroyed, constituted a conversion of it as respects the plaintiff, whose causé of action was complete at that time. This right of action is not appendant to the title to the property, which would follow it, as an appurtenance would accompany real property. Although the mortgage was subsequently foreclosed on the remnants of the machine, that could not operate to destroy the preceding cause of action, and would not convey to the purchaser at the foreclosure sale the right to institute an action for the conversion, which occurred while the plaintiff here held the title. The satisfaction of a judgment for the conversion of property will carry the title of the property to the defendant as the same stood in the plaintiff at the time of the conversion. Here the plaintiff has done nothing, subsequent to the conversion, to change her relation to the title. Having converted to his own use her estate in the chattel, it will not avail the defendant, without some further action on the part of the plaintiff, that the property was burdened with a condition which might defeat the title accruing to him by reason of the conversion and satisfaction of a judgment therefor.

The better reason is that if, in fact, the proceeds of the property were subsequently applied to the benefit of the plaintiff by due. process of law, her damages might be abated by so much; but it must be made the subject of a pleading, and would not operate to bar tbe cause of action, unless tbe full value of tbe property as it stood at tbe time of tbe conversion was realized from tbe subsequent sale and applied to tbe use of tbe plaintiff. Tbis principle of mitigation of damages, as distinguished from a bar to tbe action, is recognized in Morrison v. Crawford, 7 Or. 472.

Tbe court was in error in deciding that tbe subsequent foreclosure on tbe wreck of tbe machine barred tbe plaintiff’s cause of action for tbe previous conversion. We do not undertake to decide tbe ultimate question of fact as to whether or not there was a conversion, but we bold that tbe cause should have been submitted to tbe jury, and a directed verdict was erroneous.

Tbe judgment of tbe Circuit Court is reversed, and tbe cause remanded for further proceedings not inconsistent with tbis opinion. Reversed.

Mr. Chief Justice McBride, Mr. Justice Moore and Mr. Justice Ramsey concur.