Heckela v. Coos Bay Liquor Co.

Mr. Justice Eakin delivered the opinion of the court. 1. The answer appears to contain a complete defense, and was not demurrable. The contract discloses a state of facts which show that defendant, having the saloon building and fixtures, sought to have the business continued that it might be enabled to sell the property, and, in order so to do, made the agreement with plaintiff, who was a laborer without much or any means. Defendant placed him in possession of the saloon to run it until the conditions should be fulfilled, retaining the title and right to enter and oust plaintiff therefrom whenever it thought just to do so; and its doing so as alleged, if true, was a complete defense to the action of replevin. 2. The motion for nonsuit raises two questions: (1) As to whether the replevin will lie upon the facts shown in the complaint and plaintiff’s proof; and (2) whether the defendant is shown to be in possession of the property at the time the action was commenced. The answer denies such possession, and alleges that defendant was not so in possession, but the answer is denied by the reply, and the defendant offered no proof upon the allegations of the answer. Plaintiff in an indefinite way alleges that defendant was in possession of the goods at the time of the commencement of the action; namely, he says that on the 5th of June, 1912, defendant wrongfully barred plaintiff from said premises wherein the goods were contained, and ever since has wrongfully detained them. The answer denies all the complaint not thereinafter admitted, and admits that the defendant took possession of the goods, retaining them for a while, and on the 1st day of August, 1912, delivered them to Clay Roberts on a condi [153] tional sale. The complaint was filed November 29, 1912, and the answer denies defendant’s possession at the time the complaint was filed, and this puts plaintiff upon proof of such possession by the defendant: Jenkins v. Ontario, 44 Or. 72 (74 Pac. 466, 102 Am. St. Rep. 625). This is a possessory action, and lies only against the party in possession, which was not proved: Shinn, Repl., § 164; Cobbey Repl., § 462; Wells, Repl., §134. 3. As to the assignment that the court erred in sustaining objections to the contract (Exhibit A) offered in evidence by plaintiff, said contract is set out in full in the answer and is denied by the reply. It was the basis of the defense, and plaintiff as a witness admits it. Therefore its admission in evidence was wholly immaterial, and plaintiff was not prejudiced by its exclusion; neither was there any error in sustaining objection to testimony of the reputed ownership of the property. 4. It is held in Morse v. Whitcomb, 54 Or. 412 (102 Pac. 788, 103 Pac. 775, 135 Am. St. Rep. 832), that evidence of general reputation of ownership may be received concerning a matter in which the public has an interest or is directly concerned, under Section 799, subdivision 12, L. O. L. It is said in Raymond v. Flavel, 27 Or. 219, at page 248 (40 Pac. 158, at page 167), that common reputation of ownership is on an equal footing with evidence of possession as notice of whatever interest the possessor may have in the land. Wilson v. Maddock, 5 Or. 480, is to the same effect, that where the ownership of the property is in dispute, common reputation of the ownership may be shown as sufficient, if not overcome; but such evidence has no place here where the character of the plaintiff’s rights to the property are set out in the pleadings and undis [154] puted. Such evidence might he competent in case it is claimed that the writing was forged, or the terms of it subsequently fulfilled, but it was incompetent here. The judgment of nonsuit was properly allowed. We find no error in the record. The judgment is affirmed. Affirmed. Mr. Chief Justice McBride, Mr. Justice Bean and Mr. Justice McNary concur.