Francis v. Bohart ( 1914 )

Opinion

Per Curiam.

1. The plaintiff respondent moves to strike from the files the appellant’s abstract of record, for the reason, in substance, that it misquotes the bill of exceptions and contains argumentative matter proper only for a brief. Based also upon this, he further moves to dismiss the appeal.

The practice in such cases is governed by Rule 7 of this court (56 Or. 616,117 Pac. x), which is as follows:

“If the respondent shall deem the appellant’s abstract imperfect or unfair, he may, within ten days after receiving a copy thereof, deliver to the appellant’s counsel one, and to the clerk of this court, with proof of service upon appellant, sixteen printed copies of such further or additional abstract as he .shall deem necessary to a full understanding of the questions involved in the appeal. ”

This rule is controlling in such cases, and if the abstract was unsatisfactory to the plaintiff, his remedy is formulated by the rule.

The motion is denied. Denied.

Department 2. Statement by Mr. Justice Burnett.

This action was commenced to recover tbe possession of seven cows, two heifers, and four calves, of tbe alleged value of $745. Tbe defendant admits tbe possession of tbe cattle and tbe demand for their custody. Otherwise be denies tbe complaint. He further answers that tbe plaintiff represented to bim that be bad sold tbe property to one Tbienes; that be relied upon tbe statement, and so bought tbe property afterward from Tbienes without any knowledge of plaintiff’s reservation of title, and hence tbe latter is es-topped to assert title in the same as be does in this action. Again, tbe defendant states that tbe plaintiff sold tbe property here in contention, with other personalty, to tbe defendant’s grantor at one time, in one sale, and as a single transaction, with tbe agreement that tbe title to all tbe chattels should remain in this plaintiff until bis grantee had fully paid for tbe same; that in an action at law subsequently commenced tbe plaintiff here recovered a judgment against bis grantee for $383.75, upon which be issued an execution and levied it upon a large part of tbe personal property included in tbe original transaction between tbe plaintiff and tbe conditional purchaser of tbe same; and that on account of tbe levy tbe plaintiff waived bis reservation of title to all tbe property included in tbe original conditional sale and vested the same in tbe contracting purchaser, from whom tbe defendant bought. Tbe reply denies tbe matter pleaded in estoppel, and admits that the plaintiff sold the personal property described in the complaint with the condition, as stated in the answer, that the title should not pass from the plaintiff until the purchase price was paid; and that, at the time the defendant claims to have bought the property, his grantor, plaintiff’s grantee in the transaction, was in default in his contract to purchase the chattels, all of which the defendant well knew. The reply further charges that the purchase of the property alleged by the defendant was without actual consideration and with a fraudulent purpose and intent, known to and participated in by both the defendant and his seller, of placing the property beyond the reach of plaintiff and hindering and delaying him in the collection of his claim against the defendant’s grantor. It was conceded that in the original transaction between the plaintiff and his grantee all the property was sold at one time, in one sale, and in one transaction, with the reservation of title as stated. The recovery of the judgment, issue of the execution thereon, and levy upon certain personal property are admitted, but the reply states that the levy did not include the particular property involved in this action. From a judgment on a verdict in favor of the plaintiff after a jury trial, the defendant appeals.