Wheeler v. Steadman

BURNETT, C. J. 1. The plaintiff assigns as error, first, that the court was wrong in permitting the defendant to testify that he had given mortgages on the stock, and that some of it was subject to mortgage at the time of the trial. It is presumed “that a person is the owner of the property from exercising acts of ownership over it”: Or. L., § 799, subd. 12. Mortgaging property is an act of ownership by the mortgagor, and he himself is competent to testify to those acts to which the presumption mentioned attaches. 2. The defendant asserted ownership of the property, and demanded its return. In this connection the court refused to instruct the jury at the request of the plaintiff that the burden of proof was on the defendant to establish the contract under which he claimed to own the property. The rule is codified in Section 726, Or. L., that each party shall prove his own affirmative allegations. It is incumbent, therefore, upon the defendant to establish his affirmative assertion of ownership in the property by a preponderance of the testimony, and the instruction should have been given: Capital Lumbering Co. v. Hall, 10 Or. 202; Marabitti v. Bagolan, 21 Or. 299 (28 Pac. 10); Schoellhamer v. Rometsch, 26 Or. 394 (38 Pac. 344). 3. After the jury had retired, the court recalled it at the instance of the defendant, and, referring to the averment in the answer to the effect that part of the consideration of the contract there stated was that the plaintiff should live with the defendant, instructed the jury, in substance, that if the plaintiff [418] of his own accord left the defendant’s residence, the defendant would not be further bound to keep the contract with reference to that matter. The plaintiff excepted to this charge. Although the plaintiff’s living with the defendant is stated as one of the terms of the contract, there is no averment of a breach of the contract in that respect, or of its waiver by either party, and hence the instruction in question was not germane to the issue and should not have been given. 4. It is assigned as error that the verdict does not support the judgment, and that the court erred in rendering a money judgment. Such a judgment in replevin, aside from what may be allowed as damages, can be entered only as an alternative when the return of the property cannot be had. Each party claims to be the owner of the property and entitled to its possession, the defendant demanding a return of that which had been taken under the writ issued. In all cases the verdict must correspond to the issues, and hence it should have stated who was the owner and entitled to the possession of the property. It is silent as to the principal question involved, namely, the title to and right to the possession of the chattels. The verdict, being merely for the defendant, might correspond to the general issue under circumstances where the defendant had never had possession of the property or claimed to own it, but, on the contrary, disclaimed any right to the same. But where each party claims the property, the verdict must settle that question. In this view, the verdict was not sufficient to support the judgment. 5. It is urged by the defendant that the complaint is defective because it does not state that the de [419] tention of the property is in the county where the action was commenced. Where the defendant, as in the instant case, has answered to the merits without raising this question, the contention here made is settled against the defendant by Marx v. Croisan, 17 Or. 393 (21 Pac. 310); Byers v. Ferguson, 41 Or. 77 (68 Pac. 5); Templeton v. Lloyd, 59 Or. 52 (115 Pac. 1068), and Ward v. Hamlin, 71 Or. 248 (142 Pac. 621). Other minor errors are cited, but it is not necessary to notice them, as they probably will not occur at a new trial. The judgment had no sufficient verdict to sustain it, and must be reversed. Reversed and Remanded. McBride, Benson and Harris, JJ., concur.