Weinstein v. Mullen , 116 Or. 549 ( 1925 )

BELT, J.

Does the amended complaint state a cause of action in conversion? Giving every reasonable intendment in its favor, we are constrained to hold that it does not: Johnson v. Oregon Steam Nav. Co., 8 Or. 35; Hunt v. First National Bank of Halfway, 102 Or. 398 (202 Pac. 564). It is fatally defective in that there is an absolute failure to allege plaintiff’s ownership of the wool at the time of the commencement of the action or that respondents wrongfully converted the same to their own use. If plaintiff owned the wool, and defendants refused to deliver possession of it upon surrender of the warehouse receipt, they would be liable in an action for conversion, but such does not appear either by direct averment or reasonable inference. As stated in Austin v. Vanderbilt, 48 Or. 206 (85 Pac. 519, 120 Am. St. Rep. 800, 10 Ann. Cas. 1123, 6 L. R. A. (N. S.) 298); quoting from Miller v. Hirschberg, 27 Or. 522 (40 Pac. 506):

“ ‘The material averments in an action of this character are ownership- and right to the possession in plaintiff, and that the defendant wrongfully took and converted the property in question to his own use, or that, being lawfully in possession thereof, he so converted it.’ ”

Ultimate facts, and not evidence, should be pleaded. An allegation that plaintiff is the owner and entitled to the immediate possession of the wool, and that defendants wrongfully converted the same to their own use to plaintiff’s damage in a certain sum, contains the essence of an action in conversion.

Having reached the conclusion that the complaint is fatally defective, it is really not necessary to proceed further; but, after an examination of the record, we do not hesitate to say that the weight of the evidence is in keeping with the findings of the trial court. The decree dismissing this action is therefore affirmed.

Affirmed.