Appeal from Circuit Court, Columbia County. Albert R. Musick, Judge.
George G. VanNatta, St. Helens, argued the cause for appellant. On the brief were VanNatta & Petersen.
Richard K. Klosterman, Portland, argued the cause for respondent. On the brief were Klosterman & Joachims.
The plaintiff Petersen brought this action to recover possession of a tractor which was in possession of the defendant Thompson who claimed to own it. Both men claimed ownership by purchase from J.I. Case Credit Corporation.
The court tried the case without a jury and when plaintiff rested granted defendant's motion for a nonsuit. Plaintiff appeals from the judgment of nonsuit.
This case arose out of the following facts. J.I. Case owned a repossessed tractor located in the woods near Morton, Washington. In the middle of February 1972, defendant Thompson telephoned Case's credit supervisor Henderson about buying the tractor. Henderson agreed to sell the tractor to Thompson for $1,000 "as is, where is." Thompson was to pick up the tractor in the woods and pay the purchase price in cash.
On March 1st Thompson picked up the tractor and brought it to Oregon. There is a dispute about when Thompson told Henderson that he had picked up the tractor. Thompson said it was about the middle of March, while Henderson testified that it was around
the end of March. In any event, about March 10th or 12th plaintiff Petersen telephoned Henderson about buying the same tractor. Henderson testified that since he had heard nothing from Thompson he assumed that Thompson was no longer interested in the tractor and he therefore agreed to sell the tractor to Petersen. It is unnecessary to relate at this time the other evidence about what J.I. Case did when it discovered that it had sold the tractor to two different buyers.
Plaintiff states his assignment of error in language carefully chosen to avoid a decision of this case on its merits. His assignment of error alleges that "the trial court erred in holding that there was no evidence before it that would have supported a judgment for the plaintiff." In his statement of the question to be decided on appeal he contends that there was evidence from which the court could have found that the tractor belonged to plaintiff. In his brief defendant accepts plaintiff's "statement of the question to be decided."
Plaintiff's studied effort to limit the scope of review and defendant's acquiescence in the issue on appeal presents us with the same question we faced in Karoblis v. Liebert, 263 Or 64, 501 P2d 315 (1972). That question was whether a motion for a nonsuit in an action tried by the court without a jury permits the court to decide only whether the plaintiff has proved a case sufficient to be submitted to the jury, if there had been a jury, or whether such a motion permits the court to decide the case on the merits. In Karoblis we adopted the equity procedure and held "that the defendant in a law action tried to the court without a jury may not test the legal sufficiency of plaintiff's evidence at the close of plaintiff's case. If he wishes to challenge the sufficiency of the evidence he must rest
his case and submit the matter to the court on its merits." 501 P2d at 320. Unfortunately this case was tried before Karoblis was decided.
It appears from the statement made from the bench by the trial judge when he ruled on the motion for a nonsuit that he thought he was deciding the case on its merits. He said:
"* * * I hold that the contract was completed when he loaded the tractor upon his lowboy in the State of Washington and took delivery. There was nothing thereafter which would give Case and Company any right to rescind that contract. There was no showing of nonperformance on the part of the defendant. Therefore, the sale was completed. It was his property and he was entitled -- he was ...