Fredenburg v. Horn

218 P. 939, 108 Or. 672, 30 A.L.R. 1153, 1923 Ore. LEXIS 82

• Court: Oregon Supreme Court
• Decided: October 2, 1923
• Status: Published

Opinion

McBRIDE, C. J.

As to the contention that the bill of sale was improperly admitted because it did not contain a reference to any consideration, we are of the opinion that the objection is not well taken. Section 808, paragraph 5, Or. L., reads as follows:

“Section 808. Agreement not in Writing, When Void. — In the following cases this agreement is void unless the same or some note or memorandum thereof, expressing the consideration, be in writing and subscribed by the party to be charged, or by his lawfully authorized agent; evidence, therefore, of the agreement shall not be received other than the writing, or secondary evidence of its contents, in the cases prescribed by law: * *

“5. An agreement for the sale of personal property at a price not less than $50 unless the buyer accept and receive some part of such personal property, or pay at the time some part of the purchase money; # ”

Section 8168, being Section á of Chapter 91 of the General Laws of Oregon of 1919, is as follows:

“Section 8168. Statute of Frauds. — (1) A contract to sell or a sale of any goods or choses in action exceeding the value of $50 shall not be enforceable by action unless the buyer shall accept part of the goods or choses in action so contracted to be sold or sold, and actually receive the same, or give something in earnest to bind the contract, or in part payment, or unless some note or memorandum in writing of the contract or sale be signed by the party to be charged or his agent in that behalf.

“(2) The provisions of this section apply to every such contract or sale, notwithstanding that the goods may be intended to be delivered at some future time or may not at the time of such contract or sale be actually made, procured or provided, or fit or ready for delivery, or some act may be requisite for the making or completing thereof, or rendering the same fit for delivery; but if the goods are to be manufactured by the seller especially for the buyer and are not suitable for sale to others in the ordinary course of the seller’s business, the provisions of this section shall not apply.

“(3) There is an acceptance of goods within the meaning of this section when the buyer, either before or after delivery of the goods, expresses by words or conduct Ms assent to becoming tbe owner of those specific goods.”

Section 8168 is a part of Chapter 91, Session Laws of 1919, and Section 77 of that act repeals all acts inconsistent with it. As the later section purports to be complete in itself and eliminates the words “expressing the consideration,” it is inconsistent with the previous section, which was thereby repealed. This was expressly held in Eigen v. Rosolin, 85 N. J. L. 515 (89 Atl. 923). In Friedman v. Plous, 158 Wis. 435 (149 N. W. 218), the court seems to have assumed for the purposes of the argument that both statutes were in force and that, conceding this, plaintiff in that ease was excluded by the terms of both, but the question of the conflict of the statutes does not appear to have been raised or considered. We are satisfied that the words “expressing the consideration” do not exist in our statute at the present time.

Counsel for defendants ingeniously contends that, as this bill of sale was executed in Modoc County, California, and no evidence was introduced as to what the statutes of California are on this subject, we must assume that the English statute of frauds (29 Car. II, Chap. 3) prevails there and that, under the doctrine that a contract is to be construed according to the lex loci contractus, it must express the consideration. The English statute of frauds did not expressly require the consideration to be expressed and it was one hundred and eight years after it was passed and long after our Revolution before Lord Ellenborough, in Wain v. Walters, 5 East, 10, so construed the word “agreement” in that statute as to hold that it was necessary to state the consideration in the memorandum. Some of the states, notably New York, shortly after this decision held with Lord Ellenborough’s construction, but the weight of authority and the best considered cases refuse to follow the doctrine so enunciated and hold that, in the absence of a statute requiring it, a statement of the consideration is not necessary in the memorandum: Sage v. Wilcox, 6 Conn. 81, is a leading case on the subject. In line with this decision are: Smith v. Ide, 3 Vt. 290; Packard v. Richardson, 17 Mass. 122 (9 Am. Dec. 123), and other cases; but the reasoning in those above cited seems to us to be conclusive. In addition to this, if, as contended by Mr. Browne in his work on the Statute of Frauds, the statute is a prescription of a rule of evidence, the lex fori and not the lex loci contractus will prevail; but it is unnecessary to pass upon this point in the present contradictory condition of the authorities, as, in view of what we consider the best American authorities, it is not necessary that the consideration be stated in the memorandum where, as in Section 8168, supra, it does not occur. The very omission of the phrase “expressing the consideration” in Section 8168 when it existed in Section 808 is, in itself, a strong suggestion that it was the actual intent of the legislature to dispense with these words.

It is also urged that, as the consideration was neither shown by the instrument itself nor pleaded, the court erred in admitting it, and authorities are cited to the effect that in an action upon a written contract, if the contract itself does not state a consideration, it should be pleaded in the complaint. The rule is correctly stated, but it should be remembered that this is not an “action upon a contract” but for wrongful conversion, which is a tort. In Austin v. Vanderbilt, 48 Or. 206, 207 (85 Pac. 519, 120 Am. St. Rep. 800, 10 Ann. Cas. 1123, 6 L. R. A. (N. S.) 298), Mr. Justice Moore, quoting the words of Mr. Justice Robert S. Bean in Miller v. Hirschberg, 27 Or. 522 (40 Pac. 506), says:

“The material averments in an action of this character are ownership and right to the possession in plaintiff, and that the defendant wrongfully took and converted the property in question to his own use, or that, being lawfully in possession thereof, he so converted it.”

The question in the case at bar was the ownership, the right to possession and the conversion of the property. The bill of sale was merely incidental to the main question as a matter of evidence tending to show plaintiff’s right to such possession.

Error is also predicated upon the refusal of the court to permit the witness Elliott to answer the question heretofore quoted in the statement. The court was correct in its ruling. Elliott could not know why the deceased wished the execution of the bill of sale to be kept secret except from his declarations and there was no question asked as to whether he made any declarations of his reason; in fact, the whole of the evidence indicates that he did not.

Another alleged error was the ruling of the court permitting the introduction of evidence of a demand made npon John S. Horn and Dewey D. Horn as executors, as recited in the statement The evidence is conclusive that they had the property; in fact, they admitted it. It is also conclusive and not denied, that Mrs. Predenburg demanded the property from their agent and was refused. The fact that when the written demand was made upon them they were described as executors makes no possible difference and it was no matter under what title they proposed to hold if they knew that she claimed the property and required its delivery to her.

Another alleged error was the refusal of the court to permit evidence by defendants of what part of the property sold for and what disposition was made of the money. We do not see how this could be material. The plaintiff’s loss would be neither greater nor less by reason of the price which defendants received. The rule in cases of this character is that the wrongdoer must pay the reasonable market value of the property converted, and that is not to be estimated by the price for which it was sold. If such were the case it would encourage trespass upon personal property and sales at small value, which is against the policy of the law. Counsel for appellants cite, in favor of this contention, Moore v. Lachmund, 59 Or. 565 (117 Pac. 1123, Ann. Cas. 1913C, 1273). That case was a sale by the sheriff under execution and the authorities hold, and that case held, that evidence of the amount received at such a sale is some evidence of its value. Neither the principal case nor those cited in the opinion go further than this. There seems to be a presumption in favor of the fairness of official sales at public auction, which neither in law nor logic attaches to a private sale made by a wrongdoer.

Neither did the court err in excluding evidence as to what the defendants did with the money obtained at this sale. If they sold the property, believing it to have been the property of the estate, the probate court will, no doubt, upon a showing made, return to them such amount of money as they have paid over to the estate, but the capacity in which they were acting when they sold the property or what they did with the money is not in any way relevant to the issues in this case.

It is alleged that the court erred in sustaining the objections made to testimony as to declarations of the deceased that he was the owner of the property. Considered as a part of the res gestae they are not shown to have been made at a time coincident with the prinicpal act or in connection with any conversation detailed by plaintiff’s witnesses; otherwise they were purely self-serving, if made at all. There "was no error committed in this respect.

The instruction objected to and quoted in the statement was unsound for the reason that title to part of the property alleged to have been converted was not dependent wholly upon the bill of sale but upon evidence of a title obtained prior thereto. If it had been confined solely to property claimed by virtue of the bill of sale it would have been error to refuse it, but when a request for an instruction complete in itself is partly good law and partly bad it is not obligatory upon the court to segregate the good from the bad, and it is not error to refuse it wholly. We find nothing in the remarks of the court that could possibly have prejudiced defendants’ case or indicated any opinion on the evidence.

It is urged with great earnestness that defendants should have been permitted, under subdivision 2 of Section 732, Olson’s Oregon Laws, to testify to declarations made by deceased in the late period of his sickness that the property in question was his. That part of subdivision 2 which defendants’ counsel claims is applicable to this case is as follows:

“ # * provided, that when a party to an action, suit or proceeding by or against an executor or administrator appears as a witness in his own behalf, or offers evidence of statements made by deceased against the interest of the deceased, statements of the deceased concerning the same subject matter in his own favor may also be proven.”

It is contended that the defendants, being in fact executors, although not proceeded against as such, were entitled to the benefit of this provision. It may be answered, first, that the questions propounded did not definitely fix the date of such declarations as being subject to the alleged delivery of the bill of sale; and, second, that this statute, being in derogation of the common law, should not be extended beyond its terms by construction or implication. We take it that when the statute speaks of a “party” it refers to a party to the record, — a plaintiff or a defendant. The defendants were not parties to the record in their capacity as executors. Indeed, this being an action ex delicto, they could not have been, as it is not in the power of an executor, as such, to render the estate for which he acts liable in tort: 18 Cyc. 883, 884. See Elmore v. Elmore, Exr., 58 S. C. 289 (36 S. E. 656, 51 L. R. A. 261), the notes to which cover all the law on the subject.

It is true that the plaintiff might have brought an action against the defendants in their representative capacity for money had and received for the proceeds of that portion of the property which had been sold and the proceeds turned over to the estate, but such an action would have been but a partial and inadequate remedy.

Penny v. Croul, 87 Mich. 15 (49 N. W. 311, 13 L. R. A. 83), is cited by counsel for defendants in support of his contention, but so far as it seems to sustain it we cannot follow it. The statute considered in that case provided, in substance, that:

“When a suit is prosecuted or defended by the heirs, assigns, devisees, legatees or personal representatives of a deceased person, the opposite party, if examined as a witness on his own behalf, shall not be permitted to testify at all to matters which, if true, must have been equally within the knowledge of such deceased person.”

(The quotation above is from the syllabus in 49 N. W.)

Penny, the administrator of the estate of Phillinda Hurlbut, deceased, who was the wife of Chauncey Hurlbut, deceased, brought an action against Jerome Croul personally to recover the value of certain bonds which he alleged were placed in defendant’s hands for safekeeping, to be redelivered to her on demand, and which it was alleged defendant refused to redeliver. The defendant answered, claiming that he held the bonds as executor of the estate of Chauncey Hurlbut, deceased, and for his estate. On the trial Mary Ann Williams, who was an heir of Phillinda Hurlbut, testified on behalf of plaintiff to facts relative to the ownership of the bonds, which facts must, necessarily, have been known to Chauncey Hurlbut, deceased; and Mrs. Williams and daughter also testified to an alleged conversation between defendant and Phillinda Hurlbut, deceased, as to the redelivery of the bonds. Croul, the defendant, was not allowed to contradict these conversations on the ground that he was an opposite party. The appellate court held that he, being an executor, was not the real party in interest and that the real parties were the estates of Chauncey Hurlbut and Phillinda Hurlbut. Having by this peculiar logic treated the two estates as entities, they held that Mary Ann Williams, being an heir to the estate of Phillinda Hurlbut, was incompetent to testify and that Croul, being merely an executor and holding the property as such, was not an opposite party within the meaning of the law and could testify, — his testimony having been excluded by the trial court. It was evidently one of those hard cases that tend to make bad law and was rendered by a divided court, — three members holding for reversal and two for affirmance. The opinions on both sides of the controversy are able and plausible, but we are inclined to adopt the view of Chief Justice Champlin, who wrote for the minority and held to the doctrine that when the law used the term “opposite party” it was meant to refer to a party to the record.

Our own Code has never in any instance used the term “party to an action” or “parties” with any other meaning than that implied by the words “plaintiff” or “defendant” and we do not believe it has done so in this instance.

Taking the evidence as a whole, it is apparent that when the deceased executed the bill of sale it was in his mind that at his death the plaintiff should have this property. His refusal to have Elliott destroy it when it was returned to him was some indication that he still had it in his mind to make it effective. The question of the actual delivery of the bill of sale was fairly tried out and in spite of the fact that the Horns considered it impossible that the delivery and accompanying conversation could have occurred the jury found differently and in favor of plaintiff. Most of the property was out upon the range, only an animal or two being on the pasture of deceased, which pasture may have, for all that appears, contained anywhere from one acre to thousands of acres. In his condition, taken in connection with the giving of the bill of sale, he made the only delivery of the property that was reasonably feasible under tbe circumstances: Giving her the bill of sale and saying, “Here is your property.” Assuming the testimony of plaintiff and her witnesses is true, which we must after verdict, the deceased, even if now alive and the defendant in this action, could not successfully defend against an action in replevin or for conversion. The value of the property may seem large in proportion to the alleged services rendered and it may be possible that some element of generosity and regard entered into the transaction, but deceased had a right to be generous as well as just.

Finding no reversible error, the judgment is affirmed. Affirmed.

Bean, Brown and McCourt, JJ., concur.