Geary v. Prudhomme

*170 COSHOW, J. 1. Replevin will not lie for the recovery of an undivided interest in an article of personal property: Cobbey on Replevin (2 ed.) § 238 Halsey v. Simmons, 85 Or. 326, 327 (166 Pac. 944, L. R. A. 1918A, 321); Huffman v. Knight, 36 Or. 581 (60 Pac. 207); Phipps v. Taylor, 15 Or. 484 (16 Pac. 171). The prayer of the complaint as amended in the course of the trial is as follows: “Wherefore plaintiff prays judgment against the defendant that he, plaintiff, be adjudged to be the owner and entitled to the immediate possession of the certain device or patent, or applied for patent, known as the Gorden Multiple Unit Retort. * *, ” for the possession thereof or its value, restraining the defendant from selling or assigning the said interest in said patent, and plaintiff’s costs and disbursements. The description of the plaintiff’s interest as stated in his amended complaint it: “ * * ’plaintiff had possession, was the owner and entitled to the immediate possession of an undivided one-fourth interest in a proposed certain assignment or purported assignment given by Gorden to the plaintiff, herein assigning to this plaintiff one-fourth undivided interest in a certain patent, or applied for patent, * * ” The verdict is to the effect that the plaintiff is the owner and entitled to the immediate possession of a certain assignment or purported assignment of a one-fourth interest in a patent or applied for patent, etc. The Circuit Court construed the complaint as an action to recover the document which was the evidence of plaintiff’s ownership in the proposed patent. But the judgment entered upon the verdict describes the object of plaintiff’s cause as follows: *171 “That the plaintiff is entitled and is the owner of the immediate possession of an undivided one-fourth interest in and to that certain patent, or patent applied for, known as the Gorden Multiple Unit Retort, and same is hereby awarded to him, * * ” and the said plaintiff is further entitled to recover of and from the defendant his costs, etc. We are of the opinion that this cause was commenced as a suit in equity and that it should have been tried in the Circuit Court as such. We- believe that the complaint does not state facts sufficient to constitute an action in replevin: Almada v. Vandecar, 94 Or. 515 (185 Pac. 907), and authorities cited above. The evidence is all before this court and we are convinced that the plaintiff was entitled to a decree declaring him to be the owner of a one-fourth undivided interest in the property described as a patent device, or patent applied for device, and to the return of the contract entered into between Gorden and the plaintiff which was the only evidence of plaintiff’s title to this property. It might be questionable whether the property interests of plaintiff in the applied for patent is of such a tangible nature as to be capable of recovery in an action in replevin. No doubt the plaintiff could have recovered the contract if he had sued for it: Willis v. Marks, 29 Or. 493 (45 Pac. 293). If it was the plaintiff’s intention simply to recover said contract he woefully failed to express his intention. Recovery, however, of the paper would not be as complete a remedy as a decree of equity awarding to plaintiff the ownership of a one-fourth interest in the property described in the contract as assigned to plaintiff by said agreement with Gorden. Boyes v. Ramsden, 34 Or. 253 (55 Pac. 538). *172 The evidence convinces us that the plaintiff is entitled to relief. The parties to the proceeding were the only witnesses. We are satisfied from the testimony of these two witnesses that the defendant has totally failed to perform his part of the agreement with plaintiff entered into when the latter delivered to defendant the agreement with Gorden. Under the view we have taken it is not necessary to pass upon the alleged errors in the instructions given to the jury by the judge or his refusal to give the instructions requested by the defendant. The amendments allowed by the trial court did not change the cause of action or suit and were allowable within the discretion of the court. We are satisfied that the jury reached the right result. Under authority of Article VII, Section 3c of the fundamental law, and Section 390, Or. L., the case will be disposed of here as a suit in equity. Boord v. Kaylor, 114 Or. 62 (234 Pac. 263); Poole v. Vining et al., 102 Or. 414 (201 Pac. 726, 202 Pac. 724); Gollert v. Bank of California Nat. Assn., 107 Or. 162, 177 (214 Pac. 277). The judgment appealed from will be set aside and a decree entered herein to the effect that the plaintiff is the owner of an undivided one-fourth interest in and to the device known as the Gorden Multiple Unit Retort, and any patent rights granted to the said Gorden for said device, is the owner and entitled to the immediate possession of the contract between the said Gorden and plaintiff and introduced as Exhibit “A” in the evidence, and that said contract be delivered to the plaintiff by the defendant forthwith. Plaintiff will be allowed his cost below. Each party will pay his own costs in this court. Reversed and Decree Entered.