Continental Bank & Trust Co. v. Dealey Bros.

WILLSON, C. J. (after stating the facts as above). [1] In its petition appellant alleged that the Craven Company purchased the shingles of the Bonds Company, and that the Bonds Company assigned to it the indebtedness for the purchase price thereby arising in that company’s favor against the Craven Company. As the owner of this debt appellant sought judgment against the Craven Company for the amount thereof. By other counts in its petition appellant sought, in the event it should appear that the Craven Company had not purchased the shingles, judgment against that company and Dealey Bros, on the theory that they, acting together with the Bonds Company in pursuance of a scheme to defraud it, had converted the shingles by the sale thereof to Tims. The allegation that the Craven Company purchased the shingles and became indebted to the Bonds Company for the purchase price thereof was supported by the testimony of C. A. Bonds that the Craven Company “agreed to buy and did buy the shingles in controversy.” This testimony, and testimony showing the Bonds Company to have assigned its claim against the Craven Company for the purchase price of the shingles to appellant, made an issue as to whether the latter company had purchased the shingles or not, which should have been submitted to the jury. The trial court had no right, because it was contradicted by other testimony in the case, to determine the question himself. It must be held, therefore, that that court erred when he peremptorily instructed the jury that appellant was not entitled to recover anything as against the Craven Company; for, clearly, appellant was *553 entitled to recover against that company if it was true, as the jury might have found it to be, that the Craven Company as purchasers of the shingles had become indebted to the Bonds Company. On another trial, if the testimony maltes an issue, as it did on this one, as to whether the Craven Company was the purchaser of the shingles or not, the jury should be instructed to find for appellant as against that company if they believe it purchased the shingles, and, in that event, to find against appellant on its claim of liability to it on the part of Dealey Bros.; for if the Craven Company was the owner of the shingles, Dealey Bros., in _ selling same to Tims, were not guilty of a conversion thereof as against appellant. [2] In reversing the judgment so far as it is in favor of the Craven Company and Dealey Bros., on the ground stated, we do not mean to be understood as holding that the peremptory instruction given either would or would not have been error if the testimony had not made an issue as to whether the Craven Company was the purchaser of the shingles or not. With reference to this phase of the case we will not say more than that we are inclined to believe the testimony was not sufficient to support a finding that the Craven Company and Dealey Bros., if the former was not the purchaser of the shingles, acted together in converting same. If they did not act together in the matter, but were liable, if at all, as for several and distinct conversions, it may be it was not error to so instruct with reference to this branch of the-case, on the theory that appellant, having alleged a joint conversion, and proved several and distinct conversions, was not entitled to recover. Strawbridge v. Stern, 112 Mich. 16, 70 N. W. 331; Cooper v. Blair, 14 Or. 255, 12 Pac. 370; Dahms v. Sears, 13 Or. 47, 11 Pac. 891; Larkins v. Eckwurzel, 42 Ala. 322, 94 Am. Dec. 651; 15 Plead. & Prac. 562; 21 Plead. & Prac. 1033. Bonds is not in the attitude of complaining of the judgment against him. Therefore it will be affirmed as to him, and will be reversed in other respects, and will be remanded for a new trial as between appellant, the Craven Company and Dealey Bros.