Fleckenstein v. Inman , 27 Or. 328 ( 1895 )

Opinion by

Mr. Chief Justice Bean.

1. It will be observed from the foregoing statement that no issue was made or tendered by the pleadings as to the ownership of the logs in question, but, on the contrary, it was affirmatively alleged in the answer that they belonged to Makarainen, and that the defendant was indebted to him on the date of the assignment to the plaintiffs for the value of the logs received and converted into lumber by it prior to that date, less the amount paid thereon. The only issues in the case were as to the assignment of the account to plaintiffs, the quantity and value of the logs, and whether they were purchased by the defendant as alleged in the complaint, or received by it in the manner and under the circumstances set out in the answer. No offer was made to amend, and, under the pleadings as they stood, the instruction requested by defendant that if Makarainen did not own the logs he could not by an assignment vest any title in the plaintiffs to the claim or demand for the price thereof, was not only outside of the issues, but was in the face of the admission of his ownership in the answer, and for that reason was properly refused. It was also properly refused for another reason. The alleged sale by Makarainen to his brother was made prior to the sale of the logs to the defendant, if a sale was made, and before the receipt of them by defendant, if received as stated in the answer, and all the dealings with defendant were had by Makarainen and in his own name. Defendant regarded him as the owner of the logs, made payments to him thereon, and indeed he was the only party known in the transaction as the owner or claiming any interest therein prior to his disclosures as a witness at the trial. And while it is true he testified that his brother was in fact the owner, he also testified that he was acting as agent in making the assignment to plaintiffs, and that his act in so doing was subsequently ratified and confirmed. The court could not, therefore, have properly instructed the jury that if his brother owned the logs plaintiffs obtained no title by the assignment to them, as it entirely ignored the testimony of Makarainen that he was authorized to make the assignment, and that it was subsequently ratified, which would have given it validity even if Makarainen did not own the logs himself. We therefore think the court was clearly right in refusing the instruction as requested.

2. In support of the other assignment of error it is contended that if the defendant did not purchase the logs of Makarainen, but they were put into its rafts without its consent, it would not be liable for their value until received and used at its mill in Portland, and plaintiffs can only recover in this action for the value of the logs so used and received prior to the date of the assignment to them in February, eighteen hundred and ninety-three. From the bill of exceptions it appears that defendant’s evidence tended to show that its manager had some conversation with Makarainen in regard to the purchase of the logs which were then in the boom of the Cowlitz Boom Company, at the mouth of the Cowlitz River, some miles below the city of Portland, but declined to make the purchase because they were not of suitable lengths and sizes, and so informed Makarainen, and instructed the boom company not to place them in its rafts. In disregard of these instructions, however, the boom company placed the logs in the raft of the defendant, with other logs belonging to it, and they were subsequently brought to its mill in Portland, and sawed into lumber. A portion of the logs was received at the mill prior to the date of the assignment to plaintiffs, and a portion thereafter, but the record is silent as to when they were placed in defendant’s rafts by the boom company, and as to when it took possession and exercised acts of ownership and control over them. Assuming defendant’s theory of the case to be correct, its liability for the value of the logs attached when they were appropriated or converted by it, and not when they were actually used at the mill, if such appropriation or conversion occurred prior to that time. As the record is silent on this question, we are bound, in view of the rule that error must affirmatively appear, to assume that the instruction was refused by the trial court because there was evidence tending to show a conversion of all the logs before they were received at the mill and prior to the assignment. Finding no error in the record, the judgment is affirmed.

Affirmed.