State v. Childers

142 P. 333, 71 Or. 340, 1914 Ore. LEXIS 185

Opinions

Mr. Justice Burnett

delivered the opinion of the court.

The only testimony on the subject of the ownership of the steer is that of W. J. Densley, which is here set out:

“Q. What, if any, cattle did you buy in the month of June, 1912?

“A. I might have got several bunches. One bunch I bought, the Guyer cattle.

“Q. You say you bought the Guyer cattle. Were these Mrs. Guyer’s cattle?

“A. I bought of Mrs. G-uyer.

“Q. This particular steer in controversy was one of the Guyer cattle you purchased?

“Yes, sir.

“Q. When did you first see this brockie-faced steer after that?

“A. The first time I saw this brockie-faced steer was down at the stockyards.

“Q. In whose possession?

“A. Mr. Duby’s.

“Q. How many Guyer cattle did you buy?

“A. Well, as near as I can tell, about ten head at that time.

“Q. What were they?

“A. Straight yearlings and two year olds.

“Q. All kinds?

“A. Yes, about all kinds.

“Q. Any milch cattle?

“A. No, sir; not at that time.

“Q. When did you say you bought them?

“A. Some time in June.

“Q. What June?

“A. Last year, 1912.

“Q. What time in June?

“A. I should say something' abrA the middle of June; I couldn’t say exactly the day.

“Q. When did you receive them?

“A. Well, under the arrangement I made I was to gather the cattle and pay for all I could gather.

“Then you didn’t receive them at all?

“A. Not until I found them. .

“Q. You paid for nothing until you received it?

“A. No, sir.

“Q. You didn’t pay for this steer because you didn’t receive it?

“A. No, sir.

“Q. How many did you receive?

“A. I think something like about ten head.

“Q. This one wasn’t among them?

“A. This one wasn’t among what I received; no, • sir.

“Q. Then this steer belonged to Mrs. G-uyer that you had contracted for?

“A. Yes, sir.

“Q. You never paid for it since?

“A. No, sir.

“Q. How was that trade made by bill of sale in writing?

“A. No, sir; it wasn’t.

“Q. Verbally, was it?

“A. Yes, sir.

‘ ‘ Q. How much per head did you give ?

“A. Well, I gave $40 for two year olds, and I guess about $25 for yearlings.

“Q. You bought all their stock on the range, did you?

“A. Yes, sir.

“Q. What was the understanding with Mrs. Guyer as to where you would receive them?

“A. I was to gather the cattle and she was to come over and count them, all I could gather and pay her for all I could gather out of them.

“Q. When were you to gather them?

“A. In the fall, just as soon as I could. I went to get the stock in August.

“Q. Was there anything to prevent you from gathering them at any time ?

“A. No, sir; not after I bought them.

“Q. The payment of them was to be made when you got them?

“A. Yes, when I got the cattle.

“Q. You were to pay for these cattle as you received them?

“A, Yes, as I got them; that is, as I found them.

“Q. And unless you received them you were not to pay for them at all?

“A. No, sir; not unless I found them.

“Q. This steer you found but never paid for?

“A. No, sir.

‘ ‘ Q. Why haven’t you paid f or it ?

“A. Because I never received it.”

By a request to charge and otherwise, the question was raised in various forms whether this was sufficient proof of the allegation of the indictment that the property was that of Densley. It is said in Hamilton & Rourke v. Gordon, 22 Or. 557, 559 (30 Pac. 495, 496):

“As a general rule, where, by the agreement, the vendor is to do anything with the property, for the purpose of putting it into a deliverable condition, or into that state in which the purchaser is bound to accept it, the performance of these things, in the absence of circumstances showing a contrary intention, is taken to be a condition precedent to the vesting of the property in the buyer; and also when goods are sold by weight or measure, and anything remains to be done for the purpose of ascertaining the quantity, in the absence of circumstances showing a different intention, the title does not pass until the goods are weighed or measured. ’ ’

It is manifest from the testimony in this case that the general property in the steer remained in Mrs. Guyer, and that the utmost that can be claimed for this testimony was that there was an executory contract existing between Densley and her for the sale to him of the cattle of that brand. The number was yet to be ascertained. She had the duty of counting them, and he was to pay for them only when he received them. It is plain that if the cattle died the loss would fall upon Mrs. Guyer and not upon Densley. As taught in Hamilton & Rourke v. Gordon, 22 Or. 557 (30 Pac. 495), if Mrs. Guyer had refused to deliver the property, or had sold it to someone else, Densley, if damaged, would have had his remedy, but not by an action to recover possession of the property. It is true that the constructive possession of property is in the one holding the general title if nothing else is shown; but the constructive possession cannot be in two people at the same time, whose interests are adverse to each other. In State v. Cotterel, 12 Idaho, 572 (86 Pac. 527), it was alleged that the ownership of the mare, the subject of the larceny, was in a man who testified that he owned a band of horses, and had an arrangement with his son that the latter could have one half of what he could gather of the horses. It was held in that case that if there was such agreement this would not constitute ownership in the son until the horses were gathered. In State v. Lackey, 230 Mo. 707 (132 S. W. 602), a merchant ordered for his clerk from a manufacturing firm through its traveling agent a suit of clothes. The clothing firm made up a suit to the clerk’s measure, billed it to the merchant, and delivered it to a common carrier for transportation to the merchant. En route the car containing it was broken into by the defendant, and he was charged with the larceny of the suit, laying the property in the clerk. Although the goods were made for him, and the transaction would have resulted in the end in his being the owner of it, yet the court held that, while the ownership might have been laid in the carrier because it had lawful custody of it, or in the merchant to whom the goods were charged in the first instance and for whom the carrier held it, yet it was error to charge the property to be that of the clerk for whom the suit was made. In Merrit v. State, 73 Ark. 32 (83 S. W. 330), the defendant was indicted for the larceny of a steer, the property of W. N. Marshall. The proof showed that the animal was the joint property of Marshall and his brother as partners. An effort was made to show that the brother of the one named in the indictment was away from home, and that the partner in whom the ownership was laid had the exclusive control and special property in the animal named. The court there said:

“We think that, to sustain the allegation of ownership, there must be proof either of exclusive ownership in the person or persons named, or exclusive possession. Joint ownership of the person alleged, with one not named in the indictment, even though coupled with special authority to control and manage, is not sufficient, unless accompanied by separate possession. In theory, title to a chattel draws to it constructive possession, unless someone else have actual possession. So it follows that there can be no special ownership in one not having the legal title, without separate possession. * * The jury should have been instructed, as asked by appellant, that the proof must show that W. N. Marshall had the exclusive possession of the property at the time it was alleged to have been stolen. The modification whereby the jury were told that the ‘right of exclusive possession and control,’ etc., was not sufficient to meet the requirement.”

So, here, the mere fact that Densley had the right to go upon the range and take possession of the cattle for the purpose of having Mrs. G-uyer count them would not confer upon him any property either general or special until he actually exercised that right and took custody of the cattle. Not having possession, he was neither bailee nor general or special owner of the property. As to the steer in question, he only had an unused option to purchase him. Indeed, having the right to purchase as many cattle as he could gather, if Densley had taken up some of them and disposed of them without the knowledge of Mrs. Guyer and without paying for them, he would have been guilty of larceny himself within the meaning of Rex v. Tideswell, 1 B. R. C. 997 (21 Cox C. C. 10). There the defendant had the right to take ashes from the works of a manufacturing concern, paying for the amount he took. He carried away 32 tons and accounted for only 31 tons and was adjudged guilty of larceny for so doing. The variance between the allegation and proof is fatal to the indictment.

It is unnecessary to-notice the other errors assigned.

The judgment is reversed for further proceedings.

Reversed. Rehearing Denied.