178 P. 932 | Or. | 1919
“No damages are recoverable for the act of taking; all must be for the act of converting. This is the tort or maleficium, and to entitle the plaintiff to recover two things are necessary: First, property in the plaintiff; secondly, a wrongful conversion by the defendant.”
Further, Mr. Justice Slater says in the latter case:
“In this state conversion has been defined as a dealing by a person with chattels not belonging to him, in a manner inconsistent with the rights of the true owner.”
In Lee Tung v. Burkhart, 59 Or. 194 (116 Pac. 1066), the plaintiffs were engaged in mercantile business and had a stock of goods in the building of the defendant under a lease yet unexpired by three years. The city authorities had condemned the structure and ordered it to be tom down, but the plaintiffs refused to remove their property, whereupon the defendant landlord took out the goods and stored them in a public warehouse for the account of the plaintiffs. After a thorough examination of the authorities the opinion by Mr. Justice Bean lays down the rule thus:
“In order to maintain an action for conversion, there must have been, on the part of the defendant, some unlawful assumption of dominion over the personal property involved, in defiance or exclusion of the plaintiffs’ rights, or else a withholding of the possession from the plaintiffs, under a claim of right or title inconsistent with that of the plaintiffs.”
The removal of the goods was held not to be ,an act of conversion.
“If the defendants did not abridge any right by which in law plaintiff was clothed, they certainly could not be guilty of conversion.”
In Manning v. Brown, 47 Md. 506, the circumstances were somewhat similar to those of Lee Tung v. Burkhart, 59 Or. 194 (116 Pac. 1066), and the court said:
“There was no evidence whatever of any intention on the part of the defendants to take to themselves the property in the goods or in any manner to deprive the plaintiff of them. To entitle him to recover in trover such proof would have been required.”
The rule is thus stated in Spooner v. Holmes, 102 Mass. 503 (3 Am. Rep. 391):
“Trover cannot be maintained without proof that the defendant either did some positive, wrongful act with the intention to appropriate the property to himself or to deprive the rightful owner of it, or destroyed the property.”
It is stated in Evans v. Mason, 64 N. H. 98 (5 Atl. 766), that:
“It is not every wrongful intermeddling with, asportation or detention of another’s goods that amounts to conversion. To constitute a conversion of chattels there must be some exercise of dominion over the property in repudiation of or inconsistent with the owner’s rights. ’ ’
In Jordan v. Greer, 5 Sneed (Tenn.), 165, a woman was preparing to sue her husband for a divorce and for the purpose of laying a basis in her complaint to sustain a demand for alimony, she took a pocketbook containing some promissory notes belonging to him and carried them to the defendant, who took a memorandum of them as data for the preparation of her
‘ ‘ There is nothing in the proof to show that the defendant was guilty of any interference with the notes, further than was necessary to take a list of them to be used in the bill they were then preparing, which was a legal purpose.”
In Frome v. Dennis, 45 N. J. Law, 515, quoting with approval from the opinion of Mr. Justice Depue in Woodside v. Adams, 40 N. J. Law, 417, it was said that:
* ‘ To constitute a. conversion of goods, there must be some repudiation by the defendant of the owner’s right, or some exercise of dominion over them by him inconsistent with such right, or some act done which has the effect of destroying or changing the quality of the chattel.”
“Personal property capable of manual delivery to the sheriff and not in the possession of a third person shall be attached by taking it into his custody. ’ ’
As the mortgage was of record, the legal effect of attaching the property was not in derogation of, but in subordination to the plaintiff’s claim of lien upon the property.
“Whenever the condition of any mortgage of goods and chattels shall be broken, the mortgagee shall be entitled to the immediate possession of the mortgaged property, and when after breach of the condition of any such mortgage the possession of the mortgaged property shall not be delivered up to the mortgagee upon demand by him or by any person duly authorized by him to make such demand of the person or persons having such mortgaged property in possession, the mortgagee may recover the possession of such mortgaged property in the manner provided by Chapter II of Title IY of the Code of Civil Procedure.”
This section provides a means of recovering the possession of a particular class of property, namely, that subject to a chattel mortgage, the condition of which
“Whenever in any mortgage of goods and chattels the parties to such mortgage shall have provided the manner in which such mortgage may be foreclosed, such mortgage, upon breach of the conditions thereof, may be foreclosed in the manner therein provided, and not otherwise; and if in any such mortgage the manner in which the same may be foreclosed shall not be provided, then upon breach of the conditions thereof, in case the consideration of such mortgage shall not exceed the sum of $500, the same may be foreclosed, and the mortgaged property sold by the sheriff or any constable of the county in which such mortgage has been filed, upon the written request of the mortgagee, his agent, or attorney, upon such notice, and in the manner provided by law for the sale of personal property upon execution; and if the consideration of such mortgage shall exceed the sum of $500, the same- may be foreclosed by an action at law in the Circuit Court of the county in which such mortgage may have been filed.”
By reference to this statute, therefore, the mortgage does provide how it may be foreclosed, which is in the manner prescribed in the section last quoted and consists in giving a written request by the mortgagee to the sheriff, who, armed with such a writing, shall sell the property as upon execution against personal property. It is not pretended that the plaintiff adopted this method of exercising his right to the property, yet that is what was required by the terms of the instrument under which he claims. By accepting the mortgage he restricted himself to that procedure. If he
Further, as stated in Lee Tung v. Burkhart, 59 Or. 194 (116 Pac. 1066):
“In actions in the nature of trover, the general rule of damages is the value of the property at the time of the conversion, diminished, when the property has been returned to and received by the owner, by the value of the property at the time it was returned.” (Citing Austin v. Vanderbilt, 48 Or. 206 (85 Pac. 519, 120 Am. St. Rep. 800, 6 L. R. A. (N. S.) 298, 10 Ann. Cas. 1123); Gove v. Watson, 61 N. H. 136; Spooner v. Manchester, 133 Mass. 270 (43 Am. Rep. 514).
In view of the fact that the automobile was never removed from the place in which it stood when the writ was served, and that the attachment was discharged two days before the amended complaint was filed, the record does not disclose that the plaintiff experienced any damage to himself on account of the actions of the defendants. For these reasons, the Circuit Court was right in its decision. To hold otherwise would be to say that chattel mortgaged property is exempt from execution or attachment for the mortgagor’s debts.
The judgment of the Circuit Court is affirmed.
Affirmed.