164 P. 728 | Or. | 1917
delivered the opinion of the court.
“The wrong lies in the interference with the owner’s right to do as he will with his own. Whoever does this in any manner subversive of the owner’s right to enjoy or control what is his own, is guilty of a conversion.”
We think there was some evidence that defendant agreed to accept a chattel mortgage although plaintiff’s testimony on this subject is contradictory. There is also evidence from which the jury could find that the parties agreed on $365.93 as the debt to be secured by the mortgage, and June 1, 1916, as the date of maturity of the note. The evidence also justifies the conclusion' that the chattel mortgage to be given was to be in such form as to permit plaintiff to take thé machine to Lebanon. The evidence is silent as to all other provisions in the contract.
In the case of Holtz v. Olds, decided April 10, 1917 (post, p. 567, 164 Pae. 583), we considered the effect
“It is indeed competent for parties to enter into a preliminary agreement looking to the execution of a consequent one in the future. "We have daily examples of that kind in bonds for deeds or in contracts for insurance, the policies of which are yet to be issued. But in all cases the minds of the parties must meet on the terms not only of the present convention, but also as to those of the covenants yet to be executed. If this rule be not observed in the stipulation and a substantial part is left open for further settlement without a canon by which the subsequent negotiations may be controlled there is no aggregatio mentium so essential to every contract.”
Our attention is called to a line of authority holding that when a check is tendered as payment and the creditor refuses the tender on some other ground, he cannot subsequently object to the tender because it was in the form of a check. Plaintiff’s allegations and proofs do not bring him within this principle of law. He does not allege a waiver of proper tender and the proof shows that defendant assigned no reason for refusing the tender. There being no evidence that the minds of the parties ever met in an agreement subsequent to June 11,1915, defendant was entitled to possession of the machine under the agreement of that date.
The Circuit Court erred in denying the motion for a nonsuit. The judgment is reversed and the lower court instructed to enter judgment of nonsuit.
Reversed With Directions.