171 P. 741 | Or. | 1918
Both parties attempt to deraign title to the property from Bust. This is an action at law and not a suit in equity and the matter must be adjudicated by legal rules as distinguished from equitable maxims. The crux of the situation is found in the construction to be given to the admitted contract. It is said in Section 136, L. O. L.:
“All questions of law, including the admissibility of testimony, the facts- preliminary to such admission, and the construction of statutes and other writings, and other rules of evidence, are to be decided by the court. * * ”
It is also said in Section 717:
“For the proper construction of an instrument, the circumstances under which it was made, including the situation of the subject of the instrument, and of the parties to it, may also be shown, so that the judge be placed in the position of those whose language he is to interpret.”
“Now, Mr. Bust, it states in this contract that the ‘said buyer agrees to pay for said crop at the price named, when delivery is completed, provided the seller delivers the same thoroughly and properly dried and cured, and free from burned or soft fruit, and in good marketable and merchantable condition.’ Now, what was your understanding in reference to whether any title passed to Gile until all this was done, or not?”
The theory of the plaintiffs is that the legal effect of the agreement in question was to transfer the title to the property from Bust to them, if not at its date, at least at the moment when he had in his possession as the output of his drier, dried prunes which were suitable for filling the contract. The defendant maintains that at best it was an executory agreement which conveyed to the plaintiffs no present title or right of immediate possession without which they cannot maintain replevin. Putting ourselves in the position of the parties on June 27,1916, when the contract was made, as we are required to do by Section 717, L. O. L., we must know by the laws of nature and the fruit season in this country that there was then no present crop of prunes of the season of 1916, dried and ready for shipment, even if the seller had an orchard upon which potential property in such fruit could be predicated. The testimony shows without dispute that at that time Bust had no prunes of any kind and no orchard or contract by means of which he could expect to acquire them, , It is common sense that a man cannot pres
“You are further instructed that under the pleadings of this case the only damages you can assess against the plaintiffs in the event you should find for*118 defendant, is the snm of one cent per pound for the prunes taken from defendant, as defendant pleads the property right in the prunes to have been in John H. Leslie Company, of Chicago, Illinois, and defendant’s interest in said prunes to have been only a contract to process them at the stipulated price of one cent per pound.”
In actions for the recovery of specified personal property, if it has not been delivered to the plaintiff, or the defendant by his answer claims a return thereof, the jury is required to assess the value of the property, if their verdict be in favor of the plaintiff, or if they find in favor of the defendant, and that he is entitled to a return thereof, and may at the same time assess the damages, if any are claimed in the complaint or answer, which the prevailing party has sustained by reason of the detention or taking and withholding such property: Section 153, L. O. L. A distinction, therefore, must be drawn between the value of the property and the damages for its detention. The instruction as framed is in some degree misleading and argumentative for the reason that it declares that the only interest the defendant has in the property is the stipulated price of one cent per pound. Many cases are cited in support of the plaintiffs’ contention to the effect that when either party claims only a limited estate in the subject of the action, the alternative judgment in his favor must he for the value of the special title. Without exception, however, those cases are between the general owner of the property and the one claiming a special estate therein, as, for instance, between mortgagor, and mortgagee, or bailor and bailee, and the like, or their successors in interest. They do not apply to cases like the present, where each is claiming the whole title and between whom there is no privity. The defendant had the right to show that
These considerations lead to an affirmance of the judgment. ; Affirmed.