(Or.

of The Dalles, on the brief), for appellant.
John Gavin, of The Dalles (R. R. Butler,
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, though the reply admits the defendant had delivered the bond to C. L. Gavin, the transfer was a pretense only, and that the defendant was at all times after it was so delivered in the constructive possession thereof.

against W. E. Mills. Judgment for plain-fused to comply, and delivered it to C. L. tiffs, and defendant appeals. Affirmed. Gavin, who paid no consideration therefor, This action was commenced June 11, 1914, and held it in trust for the defendant and to recover the possession of a bond for $1,- subject to the latter's control, and with 000 issued by the Realty Associates of Port-knowledge of his intent to hinder, delay, and land, Or., and alleged to be unlawfully held defraud the plaintiffs. by the defendant in Wasco county, Or. The Predicated on these issues, a trial was had complaint is in the usual form. All of its resulting in a judgment for the return of material averments are denied in the answer, bond No. 232, series No. 1, of the Realty Asexcept that of the demand and the refusal sociates of Portland, Or., but, if return there to deliver the bond. For a further defense of could not be had, then for the recovery it is alleged, in effect, that between February of $850, the value thereof, and the defendant 1, 1914, and May 1st of that year the plain-appeals. tiffs 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 The recovery of the possession of personal upon their refusal to accept such money left property, which, under section 283, L. O. L., it with the clerk of the court for them. is denominated an action of claim and delivThe reply denies the material averments of ery, is substantially the ancient remedy of new matter in the answer, and for a further replevin, and is governed by the same rules defense alleges, in substance, that the defend-which controlled the means originally emant voluntarily paid $62.50, when only $43.50 ployed to enforce that right. The action is 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 of having been made, they requested him to the actual or constructive possession of the propmaintain replevin, defendant should have either return the bond, with which demand he re-erty sought to be recovered at the time of the

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.

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

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

ob

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 Andrews 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.

of the demanded personal property. 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

[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 com-did not allege that this amount of money had

mitted in instructing the jury as follows:

been offered to the defendant, or that upon his refusal to accept it that sum had been left with the clerk of the court for him. The averment referred to is nothing more than a mere proposal to allow the defendant to take a judgment for the sum of $43.50. Such offer in an action of this kind is not good

"If you should find from the evidence that the plaintiffs are entitled to the bond, and should return a verdict in favor of the plaintiffs, your verdict would not prevent the defendant from recovering off the plaintiffs any amount that the plaintiffs may be owing to the defendant; in other words, you are not establishing the question as to whether plaintiffs owe the defendant 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 to deal justly with the defendant. 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 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 "I charge you, gentlemen of the jury, that if remained. While a creditor has an adequate you should find for the plaintiffs in this case, and find that the bond cannot be delivered, and remedy for the recovery of debts due him, should find that the plaintiffs have been dam- the law will not countenance the scheme of aged, you are to deduct from any amount which you may find due the plaintiffs from the defend- obtaining payment of his demands as outant as damages the amounts which are due to lined in the requested instruction, in refusthe defendant, if any, for real estate commis- ing to give which no error was committed. sions, negotiation of loan, commission on sale of [5] The complaint did not particularly debond, and for money advanced, and it is admitted and conceded in this case that the sum of scribe the bond undertaken to be recovered, $43.50 is due from the plaintiffs to the defend-probably because it had never been in the ant, but whether or not the plaintiffs are enti- plaintiffs' possession, but at their request had tled to recover in this case is a matter for you been delivered to the defendant. It appeared to determine, and the burden is upon the plain

tiffs to prove their case, and, if they fail to do at the trial that, though the bond had been

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

The plaintiffs stated to the court that these two letters constituted the contract of employment, and that they relied upon them as constituting the agreement between the parties whereby the defendant employed the plaintiffs to effect a trade of his land. In order to establish a contract upon offer and acceptance the acceptance must be in the precise terms of the offer. In other words, the acceptance must precisely meet the terms of the offer, or there is no meeting of minds so 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-CONSIDERATION.

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;

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 [Ed. Note.-For other cases, see Attorney and plaintiff was substituted in his stead. OthClient, Cent. Dig. §§ 328-331; Dec. Dig. er personages figuring in the transactions 143.]

since such offer was based on no consideration.

culminating in this litigation may be thus de

2. EVIDENCE 165-BEST AND SECONDARY-scribed: Morris & Whitehead was a Colorado MEMORANDUM. 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 memoMorris Bros. & Christensen was a partnerrandum. [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

154 PACIFIC REPORTER

call "the firm," and which took over all the satisfy certain eastern creditors of the firm, (Or. 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 latter concern and its successor, the firm, always owned a very large majority of the stock of the Power Company until it and its property were sold to the Portland Railway, Light & Power Company, another corporation in this state.

tained the sum of $65,000 received for the 1,000 shares they had agreed to issue to Muir. For this amount, with interest, judgment is demanded.

employment of the bank, the firm, and MorThe answer admits that Muir was in the ris Bros. successively; that the firm succeed

In substance, the complaint states that ed to all the interests of the bank; that MorMuir served the bank and the firm as an at-ris Bros. took over from the firm part of the torney until the dissolution of the latter, and Power Company stock being all the firm's afterwards performed the same duty to the interest therein agreeing to pay part of the defendants at an agreed monthly salary in firm's liabilities, and that afterwards Morris money which all his employers frequently Bros. sold all the Power Company stock ownsaid was inadequate compensation for the ed by them, and did not pay Muir the $65,000 services he rendered, and that if he would claimed by him. continue in their employment he should re- is traversed, in all material particulars. Otherwise the complaint ceive additional compensation in the form of an interest in the property shares of stock, about December 18, 1908, they had an acAffirmatively the defendants allege that profits, and business of the Power Company counting with Muir covering all the transand other corporations owned and operated actions described in the complaint, as a reby them, provided the enterprises were suc-sult of which they paid and discharged all cessful, the amount of which reward was to demands which he had against them. A secbe afterwards determined. that this stipulation was made both by the about February 15, 1901, Muir entered the It is charged ond defense is in substance as follows: That bank and its successor, the firm, that Muir employment of the bank at an agreed monthcontinued to work for the small salary, and ly salary, later serving the firm in the same that he fully performed all the conditions of capacity until its dissolution, and afterwards his employment on his part until the Power the defendants, composing a firm of Morris Company was finally sold as stated. stantially, the plaintiff avers that about No- compensation per month; that during all this Sub- Bros. until May 1, 1906, all at a stipulated vember 7, 1904, the members of the firm time he was working under contract for an agreed among themselves that Muir's addi- agreed salary and for no other compensation, tional compensation should consist in the is- and that long prior to the beginning of this suance to him of 1,000 shares of the Power action Muir had been paid in full for all the Company stock, but that although stock was services rendered as set out in the comissued to other employés of the firm, none plaint. was issued to him. The foregoing is a condensation of a very extended recitation of and Muir were personal friends, and that on It is further stated that these defendants 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