against W. E. Mills. Judgment for plain-fused to comply, and delivered it to C. L. tiffs, and defendant appeals. Affirmed.

This action was commenced June 11, 1914, to recover the possession of a bond for $1,000 issued by the Realty Associates of Portland, Or., and alleged to be unlawfully held by the defendant in Wasco county, Or. The complaint is in the usual form. All of its material averments are denied in the answer, except that of the demand and the refusal to deliver the bond. For a further defense it is alleged, in effect, that between February 1, 1914, and May 1st of that year the plaintiffs were the owners of real property in Oregon, and at their solicitation the defendant, as a real estate broker, negotiated the sale of a part of their lands, whereby it became necessary for him to advance on their account $62.50 interest due on a mortgage upon the premises so sold, which sum they promised to repay; that, in connection with that sale, the defendant, at the plaintiffs' request, procured for them a loan of $2,000, for which they promised to pay him $40; that between the dates last mentioned the defendant, at the plaintiffs' solicitation, negotiated the sale of other lands for them to L. W. Curtiss for $12,000, for which service they promised to pay him $600; that, in order to discharge these obligations, the plaintiffs delivered to the defendant the demanded bond, requesting him to sell it for not less than 80 per cent. of its face value, promising to pay him, if sale were made, $100; that, pursuant to the latter agreement, the defendant, on April 28, 1914, sold and delivered the bond to C. L. Gavin for 85 per cent. thereof; and that, after deducting from the proceeds of such sale the sums of money so due the defendant, there remained $47.50, which, prior to the commencement of this action, he tendered to the plaintiffs, and upon their refusal to accept such money left

it with the clerk of the court for them.

Gavin, who paid no consideration therefor, and held it in trust for the defendant and subject to the latter's control, and with knowledge of his intent to hinder, delay, and defraud the plaintiffs.

Predicated on these issues, a trial was had resulting in a judgment for the return of bond No. 232, series No. 1, of the Realty Associates of Portland, Or., but, if return thereof could not be had, then for the recovery of $850, the value thereof, and the defendant appeals.

John Gavin, of The Dalles (R. R. Butler, of The Dalles, on the brief), for appellant. M. R. Klepper, of Portland (W. H. Wilson, of The Dalles, on the brief), for respondents.

MOORE, C. J. (after stating the facts as above). [1, 2] The plaintiffs having introduced their evidence in chief and rested, the defendant's counsel moved for a judgment of nonsuit on the ground of a failure to establish a cause sufficient to be submitted to the jury. This motion was denied, and it is contended that an error was thereby committed. It is argued by defendant's counsel that the pleadings conclusively show the defendant had sold and delivered the bond to C. L. Gavin April 28, 1914, or 44 days before this

action was

commenced, and, since their client did not have possession of the demanded property at that time, this cause should have been dismissed. It is maintained by plaintiffs' counsel, however, that, delivered the bond to C. L. Gavin, the transthough the reply admits the defendant had fer was a pretense only, and that the defendant was at all times after it was so delivered in the constructive possession thereof.

The recovery of the possession of personal property, which, under section 283, L. O. L.,

is denominated an action of claim and deliv

ery, is substantially the ancient remedy of replevin, and is governed by the same rules which controlled the means originally employed to enforce that right. The action is strictly possessory, and its gist is the defendant's wrongful detention of the demanded property and the plaintiffs' right to the immediate possession thereof at the time the action is commenced.

The reply denies the material averments of new matter in the answer, and for a further defense alleges, in substance, that the defendant voluntarily paid $62.50, when only $43.50 was due, which latter sum the plaintiffs tender in full payment of the demand; that the defendant, acting for himself and L. W. Curtiss, negotiated an exchange of a part of the plaintiffs' land, for which they received a transfer of all the capital stock of The Dalles and Rockland Ferry at $3,000, a part of which stock was owned by the defendant; that, as further consideration, the plaintiffs received a conveyance of about four acres of land at The Dalles, Or., estimated to be worth $3,000, and also bonds of the Realty Associates of Portland, Or., of the face value of $6,000; that one of these bonds for $1,000 was never delivered to the plaintiffs, who consented that it might be sold by the "As an abstract proposition of law, this court defendant, but on April 2, 1914, no sale there- has become wedded to the rule that, in order to maintain replevin, defendant should have either of having been made, they requested him to the actual or constructive possession of the propreturn the bond, with which demand he re-erty sought to be recovered at the time of the

against one who at the time the action was insti"Replevin," says an author, "will not lie tuted was neither in the actual nor constructive possession or control of the property, unthe same for the purpose of avoiding the writ." less he has concealed, removed, or disposed of Cobbey, Replevin (2d Ed.) § 64.

In De Lore v. Smith, 67 Or. 304, 309, 136 Pac. 13, 14 (49 L. R. A. [N. S.] 555), Mr. Justice McNary, discussing this subject, ob

serves:

commencement of the action, so that defendant, if judgment be rendered against him, might make delivery thereof to plaintiff."

The court permitted the defendant freely to offer testimony tending to prove the plaintiffs were indebted to him as alleged in the In the case at bar, if the assignment and answer. This was done to substantiate the delivery of the bond were made by the de- defendant's theory by showing a considerafendant before the action was commenced, tion for delivering the bond to him in payostensibly to remove it from his possession, ment of the plaintiffs' obligations. The plainthough, in fact, he retained control there- tiffs' hypothesis was that the bond had been of, the action was properly maintainable so delivered in order that a sale thereof against him. This was the theory on which might be made and the proceeds arising the cause was tried. When the motion for a therefrom returned to them. If the latter judgment of nonsuit was interposed, the only theory was correct, the defendant had no testimony that had been offered was that right to appropriate the bond merely because given by the plaintiff W. P. Reed. The fact the plaintiffs might have been indebted to that he did not allude to what his counsel as-him. In an action of claim and delivery the sert was a pretended assignment and deliv-only issue that can be determined is the ery of the bond would not have authorized plaintiff's right to the immediate possession a summary dismissal of the action. In An- of the demanded personal property. drews v. Hoeslich, 47 Wash. 220, 222, 91 Pac. 772 (18 L. R. A. [N. S.] 1265, 125 Am. St. Rep. 896, 14 Ann. Cas. 1118) it is said:

"Where, as in this case, property has actually been in appellant's possession, and has been wrongfully transferred by him without respondent's knowledge before the commencement of an action for the recovery of its possession, the rule that replevin will not lie against one not in possession at the time of the commencement of the action will not obtain."

To the same effect, see Nichols v. Michael, 23 N. Y. 264, 80 Am. Dec. 259, 262. No error was committed in denying the motion.

[3, 4] An exception having been taken to a part of the court's charge, it is insisted by defendant's counsel that an error was committed in instructing the jury as follows:

The

fact that a sum of money is due and owing does not authorize a creditor, without pursuing the remedy prescribed by law, to take possession of the debtor's personal property and apply it, or the proceeds arising therefrom, to the payment of his claim. No error was committed in giving the instruction first hereinbefore quoted.

It will be remembered that the reply admitted $43.50 was due the defendant on account of interest which, it was averred, he had voluntarily paid, and also alleged that the plaintiffs tendered that sum in full payment thereof. The plaintiffs' final pleading did not allege that this amount of money had been offered to the defendant, or that upon "If you should find from the evidence that the his refusal to accept it that sum had been plaintiffs are entitled to the bond, and should left with the clerk of the court for him. The return a verdict in favor of the plaintiffs, your averment referred to is nothing more than verdict would not prevent the defendant from recovering off the plaintiffs any amount that a mere proposal to allow the defendant to the plaintiffs may be owing to the defendant; take a judgment for the sum of $43.50. Such in other words, you are not establishing the offer in an action of this kind is not good question as to whether plaintiffs owe the de

fendant or not. The question you are to try and pleading, and might upon motion have been determine is whether the plaintiffs delivered the stricken from the reply. The tender was bond to the defendant for the purpose of pay-probably set forth in the reply to show to ing the items which the defendant says the the jury a willingness on the plaintiffs' part plaintiffs owe him. If the bond was not delivered to the defendant for such purpose, then the plaintiffs would be entitled to recover the same, even if they owe the defendant each and all of the items which the defendant claims the plain

tiffs owe him."

to deal justly with the defendant.

To sanction the giving of the requested instruction would permit a creditor, without pursuing the provisional remedy of attachment, to take possession of a debtor's perAn exception having been taken by defend-sonal property unlawfully, and, if it could ant's counsel to the court's refusal to give a requested instruction, it is maintained that an error was committed in declining to direct as follows:

be sold before an action of replevin were instituted, the creditor might from the proceeds pay his own demand and turn over to the debtor the surplus of the money, if any remained. While a creditor has an adequate remedy for the recovery of debts due him, the law will not countenance the scheme of obtaining payment of his demands as outlined in the requested instruction, in refus

"I charge you, gentlemen of the jury, that if you should find for the plaintiffs in this case, and find that the bond cannot be delivered, and should find that the plaintiffs have been damaged, you are to deduct from any amount which you may find due the plaintiffs from the defendant as damages the amounts which are due to the defendant, if any, for real estate commis-ing to give which no error was committed. sions, negotiation of loan, commission on sale of bond, and for money advanced, and it is admitted and conceded in this case that the sum of $43.50 is due from the plaintiffs to the defendant, but whether or not the plaintiffs are entitled to recover in this case is a matter for you to determine, and the burden is upon the plaintiffs to prove their case, and, if they fail to do

[5] The complaint did not particularly describe the bond undertaken to be recovered, probably because it had never been in the plaintiffs' possession, but at their request had been delivered to the defendant. It appeared at the trial that, though the bond had been

the canceled bond was received in evidence H. E. Slattery, of Eugene, for appellant. disclosing the number and series as herein- Jesse Stearns, of Portland (F. E. Smith, of before set forth. Eugene, on the brief), for respondents.

"The proper way to correct an error in entering a judgment in replevin," says a text-writer, "is by motion in the court in which it was rendered, not by appeal." Cobbey, Replevin (2d Ed.) $ 1092.

To the same effect is the case of Ingersoll v. Bostwick, 22 N. Y. 425.

BURNETT, J. [1, 2] According to the bill of exceptions the plaintiff Lueddemann testified that on March 16, 1914, he received through the United States mail a letter from the defendant, "Exhibit A" which is here set out:

"Yamhill, Oregon, Mar. 16-14. "Lueddemann Ruley Company.

It is difficult to understand how the defendant can be prejudiced by the judgment in the respect mentioned, since he cannot re"Sir I seen your Ade in the Sunday Orgonian turn the bond demanded. But, however this that you had land to trade for a wheat ranch may be, the particularity of the judgment that I would trade for a good dairy ranch. My does not appear to have been called to the farm is 5 miles north of Kahlotus, Franklin attention of the trial court, so as to afford it Co. Wash. consists of 1440 achers, 1300 in cultivation, 650 in fall wheat and 650 to bee summer an opportunity to correct the final deter- followed free to buyer. Place rented to Nov. mination, though a motion to set aside the 1st, this fall. My price is $27.00 acher; there is verdict and judgment and to grant a new a mortgage of $9025, against it, $1725 due this trial was interposed. The defendant's coun- only fair; small house, barn room for 25 head fall: $1300 next fall: $6000 in 1916. Buildings sel not having specified the number and series of horses, well and windmill. SW 14 of sec. of the bond as given in the judgment now 12; all sec. 13; all of sec. 14 Town. 14 R. 34. complained of, any error committed in such I will give $1000 Com. on a trade or I will give you $1500 on cash sale. In case of cash final determination of the cause is unavail-Sale I will cut my price a little. Will give long ing on appeal. time with fair cash payment down.

It follows that the judgment should be af- hear from you soon. firmed, and it is so ordered.

Hope to Wm. Rudolf." The same witness testified that in answer

"Your truly,

BENSON, BURNETT, and MCBRIDE, JJ., to the foregoing letter he wrote, signed, and

concur.

LUEDDEMANN et al. v. RUDOLF. (Supreme Court of Oregon. Jan. 11, 1916.) 1. BROKERS 7-ACCEPTANCE-NECESSITY.

Where a firm of real estate brokers, replying to a response to their advertisement in which the owner of land offered to sell or exchange the same for a price named at a fixed commission, stated that the owner of the places they advertised could not consider the property of the person who answered the advertisement and then made a counter offer, no contract of employment of the brokers by the party resulted. [Ed. Note.-For other cases, see Brokers, Cent. Dig. §§ 5-8; Dec. Dig. Em7.] 2.. BROKERS

CONTRACT.

43-EMPLOYMENT· - WRITTEN

By direct provision of L. O. L., § 808, an agreement authorizing or employing an agent or broker to sell or purchase real estate for compensation or commission must be in writing. [Ed. Note.-For other cases, see Brokers, Cent. Dig. § 44; Dec. Dig. 43.]

Department No. 1. Appeal from Circuit Court, Lane County; G. F. Skipworth, Judge.

|

mailed to the defendant at his postoffice, Yamhill, Or., the following communication:

"Portland, Oregon, March 21, 1914. "Mr. William Rudolf, R. 1, Yamhill, Oregon --Dear Sir: Replying to your favor of March 16th, the owner of the three places we advertised could not consider your property, as it amounts to more than he would care to undertake. He would assume up to say $4,000 or $5,000, but your property amounts to over $38,000, and he would have to assume over $20,000, so it is out of the question. We are glad, however, to know about your property, as we believe that we can get you a trade. Please let me know whether all of this years crop goes with the place, or is it rented, and if rented, when can you give possession? Are they to plow the Summer fallow even if you trade the place off? How far are you from the nearest station? Is there any running water on your place, or any alfalfa land? Is there any stock and implements included? Would you cut the place in two, that is, would you trade part of it? How high would you go, if you could get a good stocked and equipped dairy farm? Please let me know about these matters, and I will try to put up a good proposition to you as we have a number of things to offer for a good wheat farm. "Yours truly,

"Lueddemann, Ruley & Co.,

"By Max Lueddemann."

Action by Max Lueddemann, Ernest L. The plaintiffs stated to the court that these Lueddemann, and J. B. Ruley, as copartners two letters constituted the contract of emunder the firm name of Lueddemann, Ruley & ployment, and that they relied upon them as Co., against William Rudolf to recover $1,000 constituting the agreement between the paras broker's commissions claimed to have been ties whereby the defendant employed the earned by the plaintiffs in effecting a sale of plaintiffs to effect a trade of his land. In orthe land of the defendant. The complaint der to establish a contract upon offer and acwas denied, and other issues raised, which ceptance the acceptance must be in the preare not deemed material for the considera- cise terms of the offer. In other words, the tion of the case. From a verdict and judg-acceptance must precisely meet the terms of ment in favor of the plaintiffs, the defendant the offer, or there is no meeting of minds so appeals. Reversed. essential to the validity of a contract. The

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

TRACTS.

following excerpt from the letter of the plain- [ 3. EVIDENCE 441-PAROL EVIDENCE-CONtiff conclusively shows that the offer of the defendant was not accepted:

"Replying to your favor of March 16th, the owner of the three places we advertised could not consider your property, as it amounts to more than he would care to undertake. He would assume up to say $4,000 or $5,000, but your property amounts to over $38,000, and he would have to assume over $20,000 so it is out of the question."

The remainder of the plaintiff's letter at best is nothing more than a counter proposition. There was no acceptance of this counter proposition according to the statements of the plaintiff that the two letters mentioned constituted the whole contract. Section 808, L. O. L., says:

"In the following cases the agreement is void unless the same or some note or memorandum thereof, expressing the consideration, be in writing and subscribed by the party to be charged, or by his lawfully authorized agent; evidence, therefore, of the agreement shall not be received other than the writing, or secondary evidence of its contents, in the cases prescribed by law. * * 8. An agreement entered into subsequent to the taking effect of this act, authorizing or employing an agent or broker to sell or purchase real estate for compensation or a commission."

As stated, the only writings offered in evidence are not sufficient in point of law to constitute a contract. The case is controlled by Henry v. Harker, 61 Or. 276, 118 Pac. 205, 122 Pac. 298, where it was decided that the writings appearing in evidence did not constitute a contract by offer and acceptance.

The judgment of the circuit court is reversed.

MOORE, C. J., and McBRIDE and BENSON, JJ., concur.

MUIR v. MORRIS et al. (Supreme Court of Oregon. Jan. 11, 1916.) 1. ATTORNEY AND CLIENT 143-ADDITIONAL COMPENSATION-CONSIDERATION.

Where plaintiff in such action alleged that defendants fixed the reward in their agreement of dissolution of their firm, at 1,000 shares of stock in a power company controlled by them, but the dissolution contracts contained no provision relating thereto, plaintiff could not prove the inclusion of such provision in oral negotiations preceding the contracts, since such negotiations being merged in the written contracts, evidence thereof was inadmissible, under L. O. L. § 713, prohibiting parol variance of written

instruments.

[Ed. Note.-For other cases, see Evidence, Cent. Dig. §§ 1719, 1723-1763, 1765–1845, 20302047; Dec. Dig. 441.]

4. EVIDENCE 424-PAROL EVIDENCE-PERSONS BOUND BY CONTRACT.

Plaintiff could not, on the ground that he was not a party to such dissolution contract, rely on conditions or considerations de hors, to support his claim to such reward, since, there being no binding obligation on defendants therefor unless embodied in the written contracts, plaintiff must recover as a privy to such contracts or not at all.

[Ed. Note.-For other cases, see Evidence, Cent. Dig. §§ 1966-1968; Dec. Dig. 424.] 5. EVIDENCE 419-PAROL EVIDENCE-CON

SIDERATION.

Where, in such dissolution contracts, the consideration provisions were contractual in their nature and not merely monetary, and the contracts were otherwise complete, leaving nothing more to be said, plaintiff could not as a privy show that the real consideration was different from that expressed.

[Ed. Note. For other cases, see Evidence, Cent. Dig. §§ 1912-1928; Dec. Dig. 419.] Bean, J., dissenting.

Department 2. Appeal from Circuit Court, Multnomah County; Henry E. McGinn, Judge.

Action by Jane W. Muir, as executrix of the estate of William T. Muir, deceased, against James H. Morris and Fred S. Morris, individually and as partners doing business under the firm name and style of Morris Bros. From a judgment for defendants, plaintiff appeals. Affirmed.

William T. Muir, plaintiff's deceased husWhere plaintiff was employed by defend-band, whom for brevity we style "Muir," beants as an attorney at a monthly salary, which gan this action to recover $65,000 as money had been fixed in advance, their statement to had and received by the defendants to his him that they realized he was underpaid, but that if he would do his best to promote their ventures, and such ventures should prove successful, he would receive a substantial reward, did not create a legal obligation on defendants;

since such offer was based on no consideration.

[Ed. Note.-For other cases, see Attorney and Client, Cent. Dig. §§ 328-331; Dec. Dig. 143.]

Oth

use, which he claimed was the proceeds of a sale by the defendants of 1,000 shares of stock in the Oregon Water Power & Railway Company held by them in trust for him. Muir died November 4, 1911, and the present plaintiff was substituted in his stead. er personages figuring in the transactions culminating in this litigation may be thus described: Morris & Whitehead was a Colorado banking corporation which we designate as In an action for such reward, the con- "the bank," the stock of which was owned tents of a memorandum made by defendants in It engaged in fixing the reward could not be orally proved by by the defendants Morris. plaintiff from memory, refreshed by a memo- promoting and operating various railway randum made by him while the matter was clear and water enterprises, and dealt in corporate in his mind, where no showing was made to ac- and municipal bonds and other securities. count for not producing the original memorandum. Morris Bros. & Christensen was a partner

2. EVIDENCE MEMORANDUM.

165-BEST AND SECONDARY

[Ed. Note.-For other cases, see Evidence, ship composed of James H. Morris, Fred S. Cent. Dig. §§ 548-555; Dec. Dig. 165.] Morris, and Julius Christensen, which we

call "the firm," and which took over all the satisfy certain eastern creditors of the firm, assets and business of the bank, continuing and did then and there assign to these deits existing enterprises and engaging in new fendants all his stock and interest in the ones. Among the concerns promoted by the Power Company. It is further averred that bank and the firm was the Oregon Water about that time the defendants formed the Power & Railway Company, an Oregon cor- partnership of Morris Bros. through which poration called herein the "Power Company" they acquired and assumed control of the with 20,000 shares of stock, each of the par Power Company and all its stock and so convalue of $100, all of which, except 4 shares tinued until about April 27, 1906, when they issued to that number of individuals, includ- sold all the stock to the Portland Railway ing Muir, to enable them to qualify as di- Light & Power Company at $65 per share, rectors, was originally issued to Fred S. which was paid to them, and that they reMorris as a representative of the bank. The tained the sum of $65,000 received for the latter concern and its successor, the firm, 1,000 shares they had agreed to issue to Muir. always owned a very large majority of the For this amount, with interest, judgment is stock of the Power Company until it and its demanded. property were sold to the Portland Railway, Light & Power Company, another corporation in this state.

The answer admits that Muir was in the employment of the bank, the firm, and Morris Bros. successively; that the firm succeeded to all the interests of the bank; that Morris Bros. took over from the firm part of the Power Company stock being all the firm's interest therein agreeing to pay part of the firm's liabilities, and that afterwards Morris Bros. sold all the Power Company stock owned by them, and did not pay Muir the $65,000 claimed by him. Otherwise the complaint is traversed, in all material particulars.

Affirmatively the defendants allege that about December 18, 1908, they had an accounting with Muir covering all the transactions described in the complaint, as a re

demands which he had against them. A second defense is in substance as follows: That about February 15, 1901, Muir entered the employment of the bank at an agreed monthly salary, later serving the firm in the same capacity until its dissolution, and afterwards the defendants, composing a firm of Morris Bros. until May 1, 1906, all at a stipulated compensation per month; that during all this time he was working under contract for an agreed salary and for no other compensation, and that long prior to the beginning of this action Muir had been paid in full for all the services rendered as set out in the complaint.

In substance, the complaint states that Muir served the bank and the firm as an attorney until the dissolution of the latter, and afterwards performed the same duty to the defendants at an agreed monthly salary in money which all his employers frequently said was inadequate compensation for the services he rendered, and that if he would continue in their employment he should receive additional compensation in the form of an interest in the property shares of stock, profits, and business of the Power Company and other corporations owned and operated by them, provided the enterprises were suc-sult of which they paid and discharged all cessful, the amount of which reward was to be afterwards determined. It is charged that this stipulation was made both by the bank and its successor, the firm, that Muir continued to work for the small salary, and that he fully performed all the conditions of his employment on his part until the Power Company was finally sold as stated. Substantially, the plaintiff avers that about November 7, 1904, the members of the firm agreed among themselves that Muir's additional compensation should consist in the issuance to him of 1,000 shares of the Power Company stock, but that although stock was issued to other employés of the firm, none was issued to him. The foregoing is a con- It is further stated that these defendants densation of a very extended recitation of and Muir were personal friends, and that on matter of inducement leading up to the crux account of a desire to help him and not beof the complaint found in the thirteenth cause of any legal obligation resting upon paragraph which we adapt to the limits of them, Fred S. Morris, representing in Orean opinion thus: That thereafter about June gon the bank and the firm, told Muir that if 26, 1905, the firm was dissolved; that before the Oregon ventures proved profitable he and at the time of such dissolution, as an would not be forgotten, but would be enabled, inducement thereto and as part of the con- out of the various enterprises mentioned, to tract of dissolution, it was then agreed be- reap benefit above and beyond the agreed tween Christensen on the one hand and the salary which he was paid; that when the defendants herein, on the other, that the firm was dissolved, the defendants were own1,000 shares of Power Company stock which ers of all the stock of the Power Company, the firm had determined to deliver to Muir except 1387 shares; that 5,000 shares had should be and was his property, to which he been deposited with Eugene Ivins as collaterwas entitled in payment of the extra compen-al for $100,000 loaned by him to the firm; sation mentioned; that defendants here that Ivins had an option also to purchase the should issue the same to him, and that in stock while still unredeemed for $50 per consideration thereof Christensen agreed to share; that on account of the friendship to