commencement of the action, so that defendant, The court permitted the defendant freely if judgment be rendered against him, might to offer testimony tending to prove the plainmake delivery thereof to plaintiff." tiffs 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. The drews v. Hoeslich, 47 Wash. 220, 222, 91 Pac. fact that a sum of money is due and owing 772 (18 L. R. A. [N. S.] 1265, 125 Am. St. Rep. does not authorize a creditor, without pur896, 14 Ann. Cas. 1118) it is said: suing 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. "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: 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 defendant or not. The question you are to try and pleading, and might upon motion have been The tender was determine is whether the plaintiffs delivered the stricken from the reply. 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 plaintiffs owe him. If the bond was not deliv-the jury a willingness on the plaintiffs' part ered 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: "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 commissions, 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 so, your verdict must be for the defendant." 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 refusing to give which no error was committed. [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 sold, and a new one issued in lieu thereof, the canceled bond was received in evidence disclosing the number and series as hereinbefore set forth. "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. H. E. Slattery, of Eugene, for appellant. Jesse Stearns, of Portland (F. E. Smith, of Eugene, on the brief), for respondents. 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 "Yamhill, Oregon, Mar. 16-14. "Lueddemann Ruley Company. It is difficult to understand how the de-out: fendant can be prejudiced by the judgment in the respect mentioned, since he cannot return the bond demanded. But, however this may be, the particularity of the judgment does not appear to have been called to the attention of the trial court, so as to afford it an opportunity to correct the final determination, though a motion to set aside the verdict and judgment and to grant a new trial was interposed. The defendant's counsel not having specified the number and series of the bond as given in the judgment now complained of, any error committed in such final determination of the cause is unavailing on appeal. It follows that the judgment should be affirmed, and it is so ordered. that you had land to trade for a wheat ranch The same witness testified that in answer BENSON, BURNETT, and MCBRIDE, JJ., to the foregoing letter he wrote, signed, and concur. (79 Or. 249) 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. 88 5-8; Dec. Dig. 7.] 2. BROKERS 43-EMPLOYMENT CONTRACT. - WRITTEN By direct provision of L. O. L, 8 808, 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 TRACTS. 117 following excerpt from the letter of the plain- 13. 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 thau he would care to undertake. would assume up to say $4,000 or $5,000, but He 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. (80 Or. 378) Where plaintiff in such action alleged that of dissolution of their firm, at 1,000 shares of defendants fixed the reward in their agreement stock in a power company controlled by them, but the dissolution contracts contained no prothe inclusion of such provision in oral negovision relating thereto, plaintiff could not prove tiations 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. Cent. Dig. §§ 1719, 1723–1763, 1765–1845, 2030[Ed. Note. For other cases, see Evidence, 2047; Dec. Dig. 441.] 4. EVIDENCE 424-PAROL EVIDENCE-PERSONS BOUND BY CONTRACT. Plaintiff could not, on the ground that he rely on conditions or considerations de hors, to was not a party to such dissolution contract, 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. Cent. Dig. 88 1966-1968; Dec. Dig. ~424.] [Ed. Note.-For other cases, see Evidence, 5. EVIDENCE 419-PAROL EVIDENCE-CON SIDERATION. Where, in such dissolution contracts, the consideration provisions were contractual in contracts were otherwise complete, leaving noththeir nature and not merely monetary, and the ing more to be said, plaintiff could not as a privy show that the real consideration was different from that expressed. Cent. Dig. 88 1912-1928; Dec. Dig. 419.] 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. MUIR v. MORRIS et al. (Supreme Court of Oregon. Jan. 11, 1916.) 1. ATTORNEY AND CLIENT 143-ADDITIONAL COMPENSATION-CONSIDERATION. 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 use, which he claimed was the proceeds of a ventures, and such ventures should prove suc- sale by the defendants of 1,000 shares of cessful, he would receive a substantial reward, did not create a legal obligation on defendants; since such offer was based on no considera tion. [Ed. Note.-For other cases, see Attorney and Client, Cent. Dig. §§ 328-331; Dec. Dig. 143.] 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. Other personages figuring in the transactions culminating in this litigation may be thus de 2. EVIDENCE 165-BEST AND SECONDARY- scribed: Morris & Whitehead was a Colorado MEMORANDum. In an action for such reward, the con- "the bank," the stock of which was owned banking corporation which we designate as tents of a memorandum made by defendants 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 It engaged in 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[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 For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes call "the firm," and which took over all the assets and business of the bank, continuing its existing enterprises and engaging in new ones. Among the concerns promoted by the bank and the firm was the Oregon Water Power & Railway Company, an Oregon corporation called herein the "Power Company" with 20,000 shares of stock, each of the par value of $100, all of which, except 4 shares issued to that number of individuals, including Muir, to enable them to qualify as directors, was originally issued to Fred S. Morris 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. satisfy certain eastern creditors of the firm, and did then and there assign to these defendants all his stock and interest in the Power Company. It is further averred that about that time the defendants formed the partnership of Morris Bros. through which they acquired and assumed control of the Power Company and all its stock and so continued until about April 27, 1906, when they sold all the stock to the Portland Railway Light & Power Company at $65 per share, which was paid to them, and that they retained 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. 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. The answer admits that Muir was in the employment of the bank, the firm, and Morris Bros. successively; that the firm succeedIn 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 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 Affirmatively the defendants allege that an interest in the property shares of stock, about December 18, 1908, they had an acprofits, 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. It is charged ond defense is in substance as follows: That that this stipulation was made both by the about February 15, 1901, Muir entered the 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. Sub- Bros. until May 1, 1906, all at a stipulated stantially, the plaintiff avers that about No-compensation per month; that during all this vember 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 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. tinue and do the very best we could to co-operate with him, making things a success, and upon the successful issue that we would receive substantial reward, putting it in the light that upon the failure, as I looked upon it, we would not be expected to be additionally compensated, we were urged in that way, at least I was, to but upon the issue of success we would be, and do the very best we could to see that things were made a success.' Muir and in pursuance of the statement they | preciated, that they desired me and them to conhad made to him, Fred S. Morris indorsed his note for $25,000, with which Muir took up 1,000 shares of stock pledged to Ivins, applying the money in payment of the Ivins loan, and that afterwards the defendants sold the stock with their own, paid Muir's note and gave him $15,000 of money realized from the sale, being the $15 per share in excess of the option price extended to Ivins. Giving this testimony its utmost weight it The reply traversed the new matter of the is plain there was nothing in the contemplaanswer in important particulars. In his tes- tion of the parties except a possible honotimony, however, Muir admitted receiving | rarium unsupported by any legal obligation. the $15,000 as profit on the sale of the 1,000 Under the contract of employment his servshares of Power Company stock redeemed ices were met by the consideration of his from Ivins, but contended it was a transac-monthly salary settled upon in advance. tion distinct from the one on which this ac- Having already agreed to render these servtion is founded. At a trial before a jury, ices, he was bound to perform them, and they the circuit court at the close of the testimony could not, as a consideration, support any adfor the plaintiff entered a judgment of non-ditional or different contract. suit on the motion of the counsel for the defendants, and the plaintiff appeals. It should be observed that in the thirteenth allegation of the complaint, to which reference has been made, the plaintiff founds her cause of action upon the contract for the dissolution of the firm, and it is stated as an inducement thereto and as part of the agreement of dissolution the defendants prom Ralph E. Moody and Kenneth L. Fenton, both of Portland (Wm. D. Fenton and Ben C. Dey, both of Portland, on the brief), for appellant. Wirt Minor, John M. Gearin, and C. W. Fulton, all of Portland (Teal, Minor & Winfree and W. A. Johnson, all of Port-ised to issue 1,000 shares of Power Company land, on the brief), for respondents. stock to Muir. The record discloses four written agreements affecting the liquidation of the firm. The first was dated January 31, BURNETT, J. (after stating the facts as 1905, and provides in general terms that the above). [1] The precise question to be deter- partnership should terminate by July 1, 1905, mined is whether there was any competent unless continued by mutual written consent; evidence to take the case to the jury. Be- that the indebtedness and liabilities of the sides the writings hereinafter mentioned, the firm should be reduced and paid off as rapevidence is found in the deposition of the idly as possible without sacrificing the interdecedent and the testimony of Julius Chris-ests or assets of the concern; and that no tensen and W. H. Hurlburt, the former a more business should be undertaken, the member of the firm, and the latter president general purpose being to enter upon a course and general manager of the Power Company of liquidation and settlement of the affairs while under control of the bank and the of the firm. The original agreement of partfirm. Muir admitted as a witness that he en-nership provided that Christensen should be tered the employment of the bank in Febru-owner of one-fifth of the firm's property, and ary, 1901, at a salary of $200 per month, which was agreed upon in advance. He continued under that arrangement until April, 1902, from which date to December 31st of that year he drew a salary of $275 per month. During the year 1903 he received a monthly compensation agreed upon in advance of $400, and afterwards until the Power Company was sold, he received $275 per month. says: He each of the two Morris brothers should own two-fifths of the same, and that the partners should be liable for the firm's indebtedness in like proportion. The next agreement affecting the winding up of the firm's affairs was dated June 26, 1905. By its terms Morris Bros., the defendants here, assumed the payment of the Ivins note of $100,000, turned over to Christensen 647 shares of Catawba "During this entire time it was frequently Jamestown Street Railway Company, and Power Company, 6% shares of Warren & stated by Mr. Fred S. Morris, who had charge of the business here and the operations of Mor- 2,383 shares of York Haven Water & Power ris & Whitehead, bankers, Morris Bros. & Chris- Company, for which Christensen transferred tensen, and Morris Bros., in this territory, that to them 49 shares of Land Company of OreI was inadequately compensated, the statement being commonly that Mr. Brown, Mr. Hurlburt, gon, 2,096 shares of Power Company stock, and myself were all working for inadequate sal- and all his interest in the 5,000 shares of aries; that this was recognized by our em- the latter stock pledged to Ivins, subject to ployers, and the purpose was to see that we the terms of the pledge and his option to received additional compensation. There was never anything definite said to me, just how this compensation would be paid; there was no promise of any definite amount, or any particular thing, but there was a continual statement and promise that there was recognition of the fact that I and the other two men spoken of other assets of the firm still on hand. The were very much underpaid; that this was ap-next agreement was dated June 27, 1905, and This purchase the same at $50 per share. agreement does not purport to affect the remaining interests of Christensen or Morris Bros. in the Power Company stock or the |