# Cook v. Kane > Oregon Supreme Court · June 1, 1886 · 13 Or. 482 URL: https://www.frixlaw.com/law-library/cases/6894805 ## Case - **Full name:** LOUIS COOK v. A. J. KANE and D. W. PRENTICE - **Court:** Oregon Supreme Court - **Decided:** June 1, 1886 - **Citations:** 13 Or. 482; 11 P. 226; 1886 Ore. LEXIS 47 - **Precedential status:** Published - **Opinion:** Dissent by Thayer - **Judges:** Lokd, Thayer, Waldo - **Cited by:** 5 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6894805 ## Opinion text Thayer, J. (dissenting). It appears from the transcript herein that the respondent, on or about the twelfth day of September, 1885, commenced a suit in said Circuit Court against one A. J. Kane, to subject a certain piano to the payment of a claim against him in favor of the said respondent. The respondent alleged in his complaint in the suit that he was a hotel-keeper in Baker City in said county; that in May, 1885, Kane became a guest at his hotel, was furnished with meals, food, and lodging of the reasonable value of $160, which had not been paid; that on the third day of July, 1885, whi.79 Kane was such guest, the respondent, at his request, took the piano into charge, then in the freight office of the Oregon Railway and Navigation Company at said city, consigned to Kane as his property; and at Kane’s request placed it in the hotel, where he had ever since had it in charge; that Kane was wholly impecunious and insolvent; that during all of said times Kane claimed *487 the lawful possession of the piano; that he was no longer a guest of respondent, and that the respondent claimed a lien on the piano for said sum of $160; that on the third day of July, 1885, at the request of Kane, the respondent advanced to the said Oregon Railway and Navigation Company, as freight transportation and charges, $14.50, which Kane had not paid, and that during the same time he loaned to Kane $12.50. The respondent demanded, as relief, a judgment t against Kane for the sum of $160, and for the further sum of $26.75, and that he he decreed to have a lien upon the piano for said sums, and that it be sold, and the proceeds be applied in payment thereof. It further appears that on or about the twenty-eighth day of September, 1885, the appellant D. W. Prentice appeared before the said court and applied to intervene in the suit; and that the court, upon such application, granted an order permitting the appellant to file an answer to the complaint, which was filed accordingly; that the appellant denied in his answer that the indebtedness of Kane was any greater sum than $140; and alleged ownership of himself in the piano, and that he was entitled to the possession of it; that he had demanded it, and the respondent wrongfully detained it; that Kane had never been the owner of the piano; that it was shipped and consigned to Kane to sell on commission; and that the only right ■or interest Kane had in it, or ever had, was in the commission to be derived from the sale of it, of which the respondent had full knowledge; that respondent claimed to keep it upon an alleged lien for the payment of a debt •due him as hotel and inn keeper for board- and lodging furnished Kane, and money loaned to him; admitted the payment by respondent of $14.50 for the charges for freight and transportation of the piano, and alleged that before filing his answer he had tendered it to him; and *488 alleged other matters not necessary to be mentioned for the purposes of this decision. After the filing of said answer, the parties entered into a stipulation, in which they agreed that for the purpose of the determination of the suit, the issues should be taken and considered as fully made as though reply had been filed, and that no objection should be made to the manner or form of the pleadings; that the court should hear and determine, and enter its decree in the case upon the following agreed facts: “1. That defendant A. J. Kane became indebted between tjie-day of May, 1885, and September 11, 1885, to plaintiff, in the sum of $140, for board and lodging furnished said Kane by plaintiff, as a hotel and inn keeper, at Baker City, Oregon, and in the further sum of $12.50, money loaned said Kane by plaintiff, between May 28 and August 3, 1885, no part of which has been paid. “2. That said defendant Kane continued to be the guest of said plaintiff at his said hotel at Baker City, Oregon, until September 11, 1885, when he left said plaintiff’s hotel and inn, and that said Kane is impecunious and wholly insolvent. “3. That on the third day of July, 1885. plaintiff took into his charge and custody and control one upright D. W. Prentice piano, No.-, mentioned in complaint, with the consent of A. J. Kane, and at his request; that the same was placed in the parlor of said plaintiff’s hotel and inn, where it ever since has been and now is; that the said instrument is of the value of $380. “4. That said piano was shipped to Baker City, Oregon, consigned to defendant A. J. Kane, and in his name, by D. W. Prentice, to be sold by said Kane on commission. “5. That said A. J. Kane is not now, and never was, the owner of said piano, and the only right he had therein *489 was to sell the same, and retain his commission out of the gross amount. “6. That D. W. Prentice has always been, and now is, the owner of said piano mentioned in the complaint. “ 7. That plaintiff paid freight charges on said piano to the Oregon Railway and Navigation Company, at the request of said Kane, the sum of $14.50. “ 8. That said D. W. Prentice, before the filing of the answer herein, demanded the possession of said piano from plaintiff, which was refused by plaintiff, and that said Prentice offered to plaintiff the said sum of $14.50, so paid by said plaintiff as freight charges on said piano, which sum plaintiff refused to accept. “ 9. That said D. W. Prentice has paid into the hands of the clerk of this court' the said sum of $14.50, as a payment in full of all claims and demands due from him to plaintiff, and the said sum is now subject to the order of plaintiff.” The court found the facts in accordance with the above stipulation, and as conclusions of law based on said findings, the court concluded: “ 1. That the plaintiff, Louis Cook, is entitled to have and recover judgment against the said defendant A. J. Kane, for the sum of $140 as declared on in the first cause of suit in said complaint. “ 2. And for the further sum of $12.50 as set forth and declared on in the second cause of suit in said complaint, and for the costs and disbursements of this suit, and that he is entitled to have execution and decree issue therefor. “ 3. That plaintiff has a good and valid lien, as a hotel and inn keeper, upon the said upright piano mentioned in the complaint, and now in his possession, in the sum of-dollars, being the amount of the board and lodging furnished by said plaintiff to the defendant A. J. *490 Kane, between the third day of July, 1885, and the eleventh day of September, 1885; that the same should be foreclosed on and against the said upright piano mentioned in the complaint, to satisfy said sum of-dollars; that he is entitled to judgment and decree of this court directing the sale of said piano for the payment and satisfaction of said sum of-dollars, and the costs and disbursements herein, and the receiver herein, in accordance with the law and practice of this court, and as property is sold on execution, sell said piano, and out of the proceeds of said sale, after paying the costs and expenses of the same, pay to plaintiff the amount of said lien, and if any overplus remain, the same to be paid into the registry of this court, subject to the order of the intervenor, D. W. Prentice. “ 4. That a judgment be docketed herein for the sum of-dollars against the said defendant, A. J. Kane.” From which decree the appeal is taken. The question to he determined is whether the decree, is sustained by the facts alleged and stipulated. The respondent’s counsel claimed in the outset that the appellant had no standing in court, that there was no party to a suit in this state known as an intervenor. There is no such party known to our Code. We have only two parties to actions, suits, and proceedings, except in garnishee proceedings, and they are known as plaintiff and defendant. Where property has been attached in the hands of a third person, and the latter refuses to furnish a certificate concerning it, or his certificate furnished it is unsatisfactory, and he is required to appear and be examined on oath concerning the same, such person, in the proceedings thereon, is known as the garnishee. (Civil Code, sec. 161.) Nor do 1 know of any case where a person not made a party to an action, suit, or proceeding has the right to becoihe a party plaintiff or defendant, *491 upon his or her own motion, except that in actions for the recovery of the possession of personal property, and an immediate delivery is claimed, another person than the defendant may claim the property. (Civil Code, soc. 140.) But there is a power in the court in all cases to cause other parties than those before it to be brought in ■when a complete determination cannot be had without their presence. (Civil Code, sec. 40.) Under the latter provision, I think it was proper in this case for the court to require the appellant to be made a party defendant, and that, in substance, was all that was done. The appellant claimed ownership of the piano which the respondent was attempting to subject to the payment of his debt, and “a complete determination of the controversy ” could not be had without the presence of the appellant. Upon the main question in the case, there is some doubt in view of the authorities upon the subject. Though upon a common-sense view there would not seem to be any. (That the man Kane could pledge the appellant’s piano for his own hotel bill, or in any way subject it to the payment thereof, would shock all sense ■of property right, j The respondent’s counsel, however, have cited numerous cases where such a lien has attached to the property of a third person, and I have no doubt but that such lion will in many cases attach to the property taken by the guest to the inn, at which he obtains accommodations, though he be not the owner of it. ( But in all such cases, it seems to me the property must derive some special benefit, or else the owner must have intrusted it to a party under circumstances from which he could reasonably have concluded that the party would become the guest of an inn, and take the property with him there as his own; and I do not think the rule should extend further than thisi) In the case under consideration, it does not appear that the appellant ever knew *492 that Kane was stopping at a hotel. He sent the piano to him at Baker City, to sell upon commission. (It does not appear that the respondent furnished the entertainment upon the credit of the piano, or upon the supposition that it belonged to Kane.J The latter might, and so far as I can see would, have continued a guest at the hotel the same whether the piano had been sent or not. It is not a case, as I view it, where the owner of the property has clothed another with the indicia of ownership, and a third person been deceived thereby into purchasing it, or giving credit upon the faith of such indication. It was purely a business transaction. The appellant was attempting to make sale of his property, and sent it to Kane for that purpose. The latter had no authority in the premises, except to exercise the special power conferred, and it does not appear but that the respondent had full knowledge of the facts, as the appellant alleged he did in his answer. I am inclined to believe that the burden of proof was upon the respondent to establish that he supposed the piano to belong to Kane, and that he entertained him upon the faith that such was the fact, before he could claim a lien upon it for the hotel bill. The property of one man should not be taken for the debt of another against the former’s consent, unless he has done some act or neglected some duty creating the liability. (A party cannot be deprived of his ownership to property to satisfy the claim of another, unless he has in some form obligated himself to submit to it,) He must have agreed to it in terms, or have done some act directly or remotely authorizing it. I do not think that the pleadings and agreed facts in this case establish that the respondent had any lien upon the piano for the hotel bill against Kane, or for anything beyond the sum advanced by the respondent for the freight and transportation of it,-unless it be for its stor. *493 age; but the instrument has doubtless been used sufficiently to offset any sum for storage, and the appellant duly tendered the amount advanced as freight and transportation. I think the decree should be reversed as to the appellant. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6894805. Public record. Not legal advice.