Capital Lumbering Co. v. Learned

Mr. Justice Moore, after stating the facts, delivered the opinion of the court. 1. It is contended by defendants ’ counsel that the court erred in striking certain allegations from the answer, to the prejudice of their clients. It was alleged therein, in effect, that at the time said property was seized it was in the possession of Mrs. Learned, and that the sheriff, after levying thereon, left it upon her premises, situated about three miles east of Salem, where it has at all times since remained. It is argued that, the sheriff not having removed the property when he seized it, it was incumbent upon him, when it was adjudged that he was entitled thereto, to receive it at the same place and in the same condition that it was when his constructive possession was disturbed. The complaint alleged that the sheriff — 547 — made a valid levy upon the property and took the same into his possession; and this allegation, not being specifically denied in the answer, is admitted : Hill’s Ann. Laws, § 94. The affirmative allegation of the answer which the court struck out being inconsistent with such admission, it was immaterial where the property was left by the sheriff upon its seizure. 2. The part of the answer which relates to where the property was to be found after its return was adjudged is important only when the character of the property and the duty of the defendants with respect to its return are considered. When a return of personal property is adjudged in an action for its recovery, it is the duty of the plaintiff, if he has secured possession thereof pending the litigation, and would escape the penalty of his undertaking, to take active measures to redeliver it to the defendant within a reasonable time, in the same condition as when taken : Cobbey, Kepi. § 1182 ; Parker v. Simonds, 8 Metc. (Mass.) 205 ; Berry v. Hoeffner, 56 Me. 170. This rule imposes upon the plaintiff in such case the duty of seeking the defendant in the action, and tendering the property to him, if it be readily capable of manual delivery ; but if such a course is difficult, by reason of its bulky character, an offer to redeliver it to the defendant is all that the law.enjoins. Thus, in an action for the possession of a steam engine, boiler, engine house, office, and hay scales, it was adjudged that the property be returned to the sheriff, who had levied thereon, but had not removed it from the place where it was then situated. The plaintiff offered to return it at the place where it was seized, but the sheriff refused to accept it, and thereafter commenced an action to recover its value, whereupon he was perpetually enjoined from enforcing the alternative judgment; the court holding that the property was of such a cumbrous nature as to render its removal incon — 548 — yenient, and that the plaintiff had done all that the law required of him in such cases : Frey v. Drahos, 10 Neb. 594 (7 N. W. 319). So, too, in Gans v. Woolfolk, 2 Mont. 458, a carpet containing six hundred yards, tacked to a floor, and not removed by the sheriff who seized it, was adjudged to be returned to him, and it was held that the carpet was so bulky as to render it necessary that the parties entitled to it should designate some convenient place to receive it, and, in the absence of such designation, the plaintiff could select a proper place for its delivery. Mr. Justice Blake, speaking for the court, in rendering the decision, says : “The carpet was a bulky and cumbersome article, and the respondents were not required to tender it, like money, to the appellants wherever found. They were obliged to deliver the property at some particular place. If the appellants neglected or refused to appoint the place, the respondents had the right to select it, with a reasonable regard for the-convenience of the appellants, and there deliver the goods.” In McClellan v. Marshall, 19 Iowa, 561 (87 Am. Dec. 454), plaintiff, having commenced an action in replevin, obtained the possession of a mare, which, upon the trial, was adjudged to be returned to the defendant, and in complying therewith the mare was driven forty miles, and tendered to the plaintiff. In the case at bar the property adjudged to be returned was of such character that it could be taken to the sheriff, and, this being so, it was incumbent upon Mrs. Learned to seek that officer at his place of business, and there tender the property to him in the same condition as when she received it: Pittsburgh Nat. Bank v. Hall, 107 Pa. St. 583. No error was committed, in our judgment, in striking out the allegation referred to from the answer. 3. It is contended that the court erred in striking out the denial in the answer that the chattels were of the value of $185. It will be remembered that the complaint — 549 — in the replevin action alleged that the property was of that value, and that the undertaking executed to secure the possession of the property contained the same recital. Such averment was binding upon Mrs. Learned, and es-topped her from contradicting the value she placed thereon. The defendant Stump, though not nominally a party to the action, became such in effect by signing the undertaking, and is to be treated as in court during the litigation, and, not having objected to the proceedings, is concluded by the judgment rendered against his principal: Cobbey, Kepi. § 1313 ; 20 Am. & Eng. Enc. Law (1 ed.), 1146; 1 Greenleaf, Ev. § 523. Thus the recital in a replevin bond of the value of the property is sufficient evidence of the value in an action on the bond, and estops the plaintiff and his sureties from denying the same : Wiseman v. Lynn, 39 Ind. 250. To the same effect, see 1 Brandt, Sur. § 45 ; Wells, Repl. § 453 ; Swift v. Barnes, 16 Pick. 194; Tuck v. Moses, 58 Me. 461; Trimble v. State, 4 Blackf. 435; McFadden v. Fritz, 110 Ind. 1 (10 N. E. 120); Washington Ice Co. v. Webster, 125 U. S. 426, 31 L. Ed. 799 (8 Sup. Ct. 947). No error was committed in striking out the denial. 4. The plaintiff having been incorporated to manufacture lumber and to erect buildings, it is contended by defendant’s counsel that it had no authority to take an assignment of Knight’s judgment, and hence no legal capacity to maintain an action of this character. The rule is well settled that, notwithstanding a corporation may have been created for the transaction of certain business, which is specified in the articles of incorporation, it may invoke any legal or equitable remedy which would be available to an individual under similar circumstances : 1 Morawetz, Priv. Corp. § 357. The right of a corporation to sue is a necessary incident to its creation, and, whatever its business may be, any right of action which — 550 — necessarily arises therefrom will receive the consideration of a court to which it may apply for relief. To reach any other conclusion would be equivalent to holding that, while plaintiff, under its articles of incorporation, might lawfully engage in the manufacture of lumber, if it sold any of its product on credit to a person who failed to keep his engagements in relation thereto, it could have no remedy for the enforcement of the debt. The statement of such consequence is a sufficient answer to the contention. 5. An exception having been taken to the following instruction, it is contended by defendants’ counsel that the court erred in giving it, viz. : “There is an issue, of course, as to whether or not the plaintiff, the Capital Lumbering Company, is the owner of this bond sued upon; and, so far as that is concerned, the written assignment in evidence is sufficient as an assignment of the bond. So I will instruct you, concerning that, that it is proven sufficiently that the plaintiff is the owner of the bond in suit.” The bill of exceptions, in referring to the evidence which gave rise to the instruction complained of, contains the following recital: “Plaintiff, to further sustain the issue on its part, offered in evidence a written instrument, properly executed, and in apt and sufficient terms, as far as the form thereof is concerned ; the same being an assignment to plaintiff by John Knight of the indemnifying bond above mentioned, and all causes of action in his favor against the defendants herein under said bond, and the judgment in favor of said Knight against the defendant Sarah T. Learned.” This assignment being in writing, and its execution admitted, it was the duty of the court, as a matter of law, to instruct the jury as to its effect, and hence no error was committed in giving the instruction. 6. It is contended that the court erred in refusing to — 551 — permit William Learned, a witness called by the defendants, to testify concerning an offer he made on behalf of Mrs. Learned to deliver the possession of said chattels to A. N. Moores, secretary of the plaintiff corporation. The bill of exceptions shows that this offer was made before the judgment was assigned by Knight. The plaintiff undoubtedly was the party beneficially interested in the judgment secured by Knight as its trustee, notwithstanding which it was the duty of the defendants to tender the property to the latter as long as he was the holder of the judgment: Cobbey, Kepi. § 1181; Blatchford, v. Boyden, 122 Ill. 657 (13 N. E. 801). No error was committed in refusing to permit the witness to answer the question. 7. The defendant Mrs. Learned, appearing as a witness in her own behalf, testified on direct examination that said property was in as good condition as it was when seized by Knight, and upon cross-examination, over her counsel’s objection and exception, she was asked and answered the following: “Q. Has your husband not been using that property right along? A. He has used the hack. Q,. Has he not broken the wheels of it several times? A. The hack has been in a runaway, and was injured, but the wheels have been repaired.” It is insisted that this cross-examination was improper. This action is founded upon an alleged breach of the condition of the undertaking in the replevin action, and, if plaintiff was entitled to recover at all, it was because the defendants failed to return the property. This being so, the condition of the property at that or any other time was wholly immaterial. The defendant having testified, however, in her direct examination, as to the condition of the property, she could not have been prejudiced by the cross-examination upon that subject, to which the opposite party was entitled: Hill’s Ann. Laws, § 837 ; Ah Doon v. Smith, — 552 — 25 Or. 89 (34 Pac. 1093); Sayers v. Allen, 25 Or. 211 (35 Pac. 254); Maxwell v. Bolles, 28 Or. 1 (41 Pac. 661) ; Oregon Pottery Co. v. Kern, 30 Or. 328 (47 Pac. 917) . 8. The judgment rendered in the replevin action is for a return of the property only, and, while its value is determined, no alternative judgment therefor was given. In this condition of the judgment it is argued that the defendant Stump had the right, at the trial, to controvert the value of the property. In Marix v. Franke, 9 Kan. 132, it is held that an action can be maintained on an undertaking in replevin where the judgment has been given simply for the return of the property, and not for the recovery of its value in case delivery cannot be had. Mr. Justice Brewer, in deciding the case, says : “But a judgment simply for the return, though irregular, is valid. It cannot be questioned collaterally. It is conclusive so far as it goes. It can be enforced by execution. * * * If the judgment is valid, how are the sureties released from their promise to see that it is performed, simply because plaintiff has not taken all in his judgment he might have done?” See, upon this subject, Cobbey, Repl. § 1313; Mitchum v. Stanton, 49 Cal. 302; Mason v. Richards, 12 Iowa, 73; Whitney v. Lehmer, 26 Ind. 503; Jennison v. Haire, 29 Mich. 207 ; Sweeney v. Lomme, 89 U. S. (22 Wall.) 208, 29 L. Ed. 727; Putnam v. Webb, 15 Or. 440 (15 Pac. 711). No error was committed in refusing to permit the defendant Stump to controvert the value of the property as found by the jury and adjudged by the court. 9. The statute provides that in actions for the recovery of personal property, the plaintiff, upon tendering an affidavit, and an undertaking executed by two or more sufficient sureties, may, upon indorsing a request to that effect upon the affidavit, obtain the possession of the property sought to be recovered. The undertaking in the case — 553 — at bar has but one surety, to wit, the defendant J. B. Stump, and it is insisted that for this reason he is not liable thereon. The point is without merit, however, for the rule is well settled that, while the party beneficially interested may move to set aside the proceedings in replevin by reason of the insufficiency of the undertaking in consequence of there being but one surety thereto, he may waive this right, and enforce the undertaking, though it is not such a bond as he had a right to demand : Wolcott v. Mead, 12 Metc. (Mass.) 516; Shaw v. Tobias, 3 Comst. 192; Claflin v. Thayer, 13 Gray, 459. Having discovered no error in the bill of exceptions, it follows that the judgment is affirmed. Aeeirmed.