Stossel v. Van De Vanter

The opinion of the court was delivered by Scott, J. This was an action for the conversion of a quantity of saw logs which the appellants caused to be levied upon and sold under an execution issued upon a judgment recovered by them against one Duvall. The appeal was taken from a verdict and judgment in favor of the plaintiffs. One of the defenses pleaded was that the plaintiffs were estopped from prosecuting the action on the ground that after the logs had been seized under the execution, Stossel, one of the plaintiffs, and one Faulds, with the knowledge and consent of Fraser and Ross, served upon the defendant Van De Vanter, the sheriff who had served the execution, a joint claim as owners of said logs, notifying the defendants that they would be held responsible to said Stossel and Faulds for all damages resulting from the sale thereof, said claim being supported by the affidavit of Stossel and Faulds. The paragraphs relating to this defense were stricken [14] from the answer, and error is assigned thereon. We think the facts pleaded were not sufficient to constitute an estoppel, for the execution plaintiffs were not proceeding against the logs as the property of Stossel and Faulds, but as the property of Duvall, the execution defendant, and they thereafter proceeded to sell sufficient of them under the execution to satisfy it, and the remainder were released. It does not appear that the appellants were misled in any wise or acted differently than they would have done, in consequence of this claim and the action of the plaintiffs relating thereto. It is next contended that the complaint did not state a cause of action. It appears that the plaintiffs were partners in said logging business and that the plaintiffs Fraser and Ross had executed and delivered to said Faulds an instrument in writing in the form of a bill of sale, which, the complaint alleged and the parties testified, was intended as a mortgage to secure him for advances made to Fraser and Ross to enable them to conduct said business. Under this allegation, the title to the property was still in the plaintiffs and they could maintain the action. It is next contended that the court erred in refusing to grant the motion for a non-suit, on the ground of the insufficiency of the evidence, but there was no error in this under the proofs introduced. It is also contended that the court erred in sustaining an objection to a question asked one of the witnesses. This witness had testified that he had a conversation with Mr. Stossel concerning his possession of “ certain personal property,” which he stated was Duvall’s, and that Stossel said he was holding the “stuff” there for Duvall, to keep Duvall’s creditors from taking it, as Duvall was indebted and could not [15] hold any property. Then appellant’s counsel asked the witness'the question: “That was referring to what?” and an objection to it by the plaintiffs was sustained. There is no sufficient foundation in the record to predicate error upon in this particular, for several reasons. It must be conceded that the appellants had a right to show that the conversation related to these logs. But it does not appear that the question was calculated to draw /out anything more than the conclusion of the witness as to what the conversation referred. The record would indicate that the witness had testified already as to the entire conversation between himself and Stossel, and after that was given in evidence, and the circumstances under which it was given, the defendants were not entitled to the conclusion of the witness as to the property referred to. No offer was made to show by the witness that there was any further conversation between the parties showing that it was these logs that were being talked about, or to show any circumstances connected with the conversation to that end, nor was there any exception taken to the ruling of the court upon the objection. There was no error in permitting the plaintiffs to cross-examine one of the witnesses for the defendants as to the state of feeling existing between himself and Duvall, as the ill-feeling existing between them was a matter that the plaintiffs had a right to have before the jury for the purpose of considering the credit to be given to the testimony of the witness. The appellants were attempting to show a fraudulent scheme upon the part of Duvall and the plaintiffs to cover up his property. It is urged that it was error to refuse to give certain instructions requested by the defendants, but [16] these were based upon the alleged insufficiency of the evidence to support a recovery and upon the question of estoppel and were properly refused; nor do we find any error in the instructions given. Affirmed. Dunbar, Anders and Gordon, JJ., concur.