After plaintiff attempted to cooperate with Wentworth Irwin, Inc., hereinafter referred to as defendant, for some three weeks in endeavoring to get Wilson to pay plaintiff's claim, it became apparent that his lien would have to be foreclosed, if plaintiff were to recover for the services rendered and material he had used on the automobile. Therefore, on July 28, through his attorney, he wrote to the defendant, Wentworth Irwin, Inc., that he was sending the necessary papers to the sheriff of Multnomah county with instruction to seize and sell the automobile according to law.
This letter was received by the defendant about 10 a.m. on July 29. On the same day the defendant transferred or attempted to transfer the car to defendant Campbell, but refused to inform the sheriff of the location of the automobile, when he demanded the car, or that it had been transferred. Later, when plaintiff by *Page 345 letter requested information as to the location of the automobile, his letter was unanswered.
There is, in my opinion, sufficient evidence in the case, unexplained as it is by defendant, to support the conclusion that the defendant had, after being served with summons in this case, control over the automobile, and should either have delivered it to the sheriff for sale or answered for its value.
There was no attempt on the part of the defendant to contest the validity of the lien, its sole purpose being to prevent the automobile from being sold to satisfy plaintiff's demand. The charge in plaintiff's letter to defendant, under date of August 8, 1931, before this suit was instituted, and which letter was admitted without objection, that the defendant was "secreting the car" for the purpose of defeating plaintiff's lien, was not denied.
For the foregoing reasons I concur in the result reached by the opinion of Mr. Justice BEAN. *Page 346