Leve v. Frazier

70 P. 376 | Or. | 1902

Mr. Justice Bean,

after stating the facts, delivered the opinion of the court.

The points principally relied on to sustain the judgment of the court below are: first, that as neither the verdict nor the judgment pretended to value the specific articles received by the plaintiffs under the first writ, or those not received, it was not competent for the court or the plaintiffs arbitrarily to fix such valuations, or to determine what amount should be credited on the judgment, or the amount due thereon, and the plaintiffs, having split up their demand by receiving and accepting' parts of these heterogeneous lots, have made it impossible for the court to determine the value of the balance; and, second, that the record shows the judgment to have been satisfied. The view we have taken of the second question renders unnecessary an examination of the first. Among other affidavits-filed on the motion to quash, were those of the deputy sheriff who attached the property, and J. Leve, one of the plaintiffs herein. The fprmer states, among other things-, that he had delivered to the plaintiffs, or to the coroner, all the property received by the sheriff on the writ of attachment or involved in the action; and the latter that, after the judgment was obtained against the defendant, he, without the consent of the affiant, and against his protest, “turned over all the property described in the complaint” to his coplaintiff, J. Adler, ‘ ‘ as keeper, in trust to sell and turn the proceeds thereof into the hands of the said defendant,” and that Adler, “while in possession of said property as aforesaid, disposed of large quantities of the same at less than the market price, and large quantities which affiant believes the said Adler has not accounted for. ’ ’ It thus appears that after the rendition of the judgment the defendant delivered to one of the plaintiffs all of the property described in the complaint, and this necessarily operated as a satisfaction of the judgment. The defendant had a right, under the law, to discharge the judgment by a delivery of the property to the plaintiffs within a reasonable time (Cobbey, Repl., 2.ed., § 1177; Marks v. Willis, 36 Or. 1, 78 Am. St. Rep. 752, 58 Pac. 526), and he could be compelled to pay its value only in case he failed to exercise such right. The fact that it may have been delivered to one of the plaintiffs as a keeper, in trust to sell, could not change the legal effect of the act of the defendant in delivering the property to its rightful owner. Adler was one of the owners, entitled to the possession of the property, and the delivery to him operated ipso facto as a satisfaction of the judgment. The defendant had nothing to do with the alleged hostility of the plaintiffs toward each other. He owed no greater duty to one than the other, and the delivery to either was a delivery to both. As they were co-plaintiffs, equally interested in the judgment,' and copartners in the property, each was the agent of the other, and the case stands here the same as if Adler, the person to whom the property was delivered, was insisting that the defendant ought to account to him for goods which he himself had already received and disposed of. If the plaintiff Leve has a grievance, it would seem to be against his coplaintiff, and not against the defendant. If Adler has received the property in controversy, and applied it to his own use, the remedy of his coplaintiff is in some proceeding to compel him to account, and not through an alias execution against the property of the defendant issued on a satisfied judgment. We think the motion to quash was properly allowed, and the judgment of the court below is affirmed. Affirmed.