Daily capital journal. (Salem, Oregon) 1903-1919, 1911-06-27

Rate of storage, $50 for each
month or part of a month.
Carriage in 49,. Packing S......
Charges advanced $...... Moved in
by. ........ Checked y..,........
Received Warehouse receipt. .......
for above list of goods. Packed by
........... Signed .............
Oregon Auto-Despatch
Address ............ Successor to
"WAKEMAN & MORSE TRANSFER
CO.,
by j. H. Coate."
A duplicate of this receipt defen-
dent placed upon the desk of w. ].
Makelim, then acting as plaintiffs at
torney, requesting that it be deliv-
cred to plaintiffs. The duplicate re-
ceipt was not at any time Endorsed
by defendant.
The court further found that, by
reason Of said taking and removal of
merchandise, plaintiffs entire bust
ness had been and is wholly de-
stroyed; that the merchandise is
still stored in the warehouse, neither
defendant Burkhart nor the ware
housemen having r%edeliYered or Of
fered to redeliver the same to plain
tiffs, and as conclusions of law the
trial court found, among other things,
that the action of the building in
spector, in pretending to condemn
the building, was without authority
of law, and void, for the reason that
no action had been taken by the city
council, condemning the building, and
that the ordinance of the city, pur-
porting to confer power upon the in
spector to condemn and order build
ings destroyed, is void. That the
action of the defendant. Cornelia
Burkhart, in entering plaintiffs said
store + = and carrying away
from the lawful possession of the
plaintiffs the whole of said stock of
merchandise, and causing the same to
be transported from said store to
said warehouse in said City of Port
land, Oregon, and in causing the
same to be stored in said warehouse
and subjected to. certain liens for the
cost and expense of it's transportation
from said store to said warehouse,
and to a further lien of $50 per
month for the storage of said mer-
chandise so long as the same should
remain therein, was unlawful and
wrongful; but that said actions of
said defendant, Cornelia Burkhart,
did not and do not constitute a
conversion of said goods by said
defendant, and that said defendant
is entitled to have the complaint
herein dismissed and to recover her
costs and disbursements incurred in
said action.
Bean, j. Plaintiffs assign error of
the court in holding as a conclusion
of law that, upon the facts found and
state, the acts of defendant did not
constitute a conversion of the goods,
and that plaintiffs complaint should
be dismissed. Before the court made
or filed it's findings, plaintiffs re-
quested it to find, as part of it's N
illusions of law, that defendant was
guilty of conversion of the goods, and
that they were entitled to judgment
for the value thereof. The findings
of fact, made by the trial court, stand
in the place of the verdict of a jury.
Plaintiffs contend that these findings
show that the property in controver.
sy was w|rongfully and unlawfully
taken from their possession, without
their consent, and against their pro-
tests, and has never been returned or
rendered, but is held in pursuance of
defendants orders and directions, and
subject to her control, without color
of right, out of the possession, con-
troll or dominion Of plaintiffs, and
that this is a conversion.
The findings of facts and conclu
sions of law of the lower court are
the basis of this appeal, and upon the
facts so found the question is raised
squarely as to whether or not they
constitute a conversion of the prop
erty, and entitle plaintiffs to recover
from defendant. Upon this point the
trial court found that the defendant.
without the consent and against the
protest Of the plaintiffs, seized and
took possession, and out of the pos
session of the plaintiffs, the whole
and every part of said merchandise,
and carried the same away from said
building and from plaintiffs possess
sion,' and that while so in possession
of said merchandise, defendant, with
out the permission or consent, and
against the protest of plaintiffs,
caused said merchandise to be stored
in a certain warehouse on account of
Hung Sun & Co., plaintiffs, taking a
warehouse receipt therefor, a dupli-
cate of which was left at the Office
of one of the attorneys for plaintiffs,
with the request that it be delivered
to them.
"a conversion, in the sense of the
law of trover, consists either in the
appropriation of the thing to the par
tvs w use and beneficial enjoy
ment, or in it's destruction, or in ex-
/ ercising dominion over it, in exclu-
/ sion or defiance of the PLAINTIFF
) right, or in Withholding. the posses.
sion from the plaintiff, under a claim
Of title, inconsistent with his own
II. Greenleaf on Ev. Sec, 642 Lore
Holt, in Baldwin v. Cole, 6 Mod, PIP
defines a conversion as "the assum.
ing upon ones self the property il
and right of d~isposing of another's
goods" Tinker V. Morrill,, 80 vt.
= Az, $50. A conversion is defined by
this court in Ramsby V. Beezley, Il
Or, 40, and quoted by Mr.. Justice
Bean in Walker V. First Nationa
Bank, 43 Or, 102, 104, as amy dis.
tinct act of dominion wrongfully ex.
erted over ones property in denial o
his right, or inconsistent with it.
"Trespass lies for any wrongful
= force. hut the Wrongful forca iS N,