Becker v. McKenzie ( 1914 )

Mr. Justice Eakin

delivered the opinion of the court.

The assignments of error relate to the refusal of the court to give certain requested instructions, and in giving certain other instructions. The contest grew out of the question whether or not the plaintiff had sold or disposed of part- of the seed, but this seems to have been rather a suspicion than a fact. The defendant testified that he knew that plaintiff had been trying to dispose of the seed. Plaintiff testified that there were 84 sacks of the seed and 2 half sacks in all.

1. Defendant requested instructions to the effect that he did not actually sell the seed until after the note became due, of which the plaintiff cannot complain. If the property was prematurely taken by the defendant, it was a wrongful taking and a conversion of the timothy seed, for which trover lies, and the subsequent maturing of the mortgage lien did not make his possession rightful or change the character of the conversion.

2. When defendant was sued in trover, he could only plead the amount of the note and mortgage in mitigation of the damages, and could not justify the conversion. In such a case the plaintiff may sue in trover for the conversion, and the defendant may plead the amount due on the note and mortgage in mitigation of the damages, which was done in this case, and the jury found the amount of plaintiff’s damages, and allowed the amount of the debt to be deducted: Springer v. Jenkins, 47 Or. 502 (84 Pac. 479); 13 Ency. Ev., p. 105. The mortgage recited that there was about 9,000 pounds of the seed, and defendant actually sold 9,122 pounds. The controversy as to whether there were 86 full sacks, or 84 full ones and 2 half sacks, has little merit. The defendant received more seed than was specified in the mortgage, and more than sufficient to pay the mortgage, and there is testimony tending to show that plaintiff did not sell any of the seed.

3. There was evidence introduced tending to show the value of the seed at the time of the conversion was much greater than the price at which the seed was sold by defendant, and it was a question for the jury to determine what the value of the seed was at the time of the taking.

We find no error in tlie instructions given, or in the refusal of those requested.

The judgment is affirmed.

Affirmed. Rehearing Denied.