Petition for rehearing denied April 3, 1934 ON PETITION FOR REHEARING (31 P.2d 163) Defendant, in an earnest petition for rehearing, intimates that the holding by this court, in effect, that Etzel's part in regard to the lumber in question was complete, was in error. The transaction being in writing and the different documents being uncontradicted, it seems as though there should be very little trouble in this regard. While, as we held, neither the defendant nor the plaintiff, in the light of the attachment referred to, was in a position of a purchaser in good faith for value, yet we desire to call attention of the learned counsel to the orders for the lumber issued by the Coast Fir Cedar Products Company to Sim Etzel. The first directed that the destination of the lumber would be "Later". The second order of November 10, 1931, directed as follows: "Destination Stock in pile". The order provided that the lumber was "To be stripped and piled at least 200 feet from mill with no lumber or trans between mill and stacked plank". And further: "Stock to be piled at mill 8 miles from track". These orders were accepted by Sim Etzel and we think constitute contracts of sale. The lumber was sawed at the mill and stacked as directed by the Coast Fir Cedar Products Company and after the same was so stacked bills of sale were executed by Etzel by which he "does by these presents, grant, bargain, sell and convey unto the said party of the second part", the Coast Fir Cedar Products Company, the lumber in question. It was to be shipped as "dry fir rough plank". At the time of the execution of bills of sale the lumber was paid for by the Coast Fir Cedar Products Company *Page 567 to Etzel, and in turn, when the bills of sale were executed by the Coast Fir Cedar Products Company to plaintiff, Wheeler Lumber, Bridge Supply Company, payment was made by the latter company to the Coast Fir Cedar Products Company for the lumber. The Coast Fir Cedar Products Company was to pay for hauling $1.50 per thousand when the lumber was shipped. The defendant having attempted to justify under a writ of attachment, section 4-401, Oregon Code 1930, which provides that property of defendant may be attached, should not be overlooked.
The statement on behalf of defendant, that Etzel was in possession of the lumber, we think is a conclusion or an opinion of the witnesses and not in accordance with the undisputed facts in evidence. It is stated in 2 Williston on Sales (2d Ed.) 1564, § 620, discussing the validity of sales, as follows:
"An attaching creditor is to be distinguished from a creditor to whom the debtor has given property for security, since an attachment is in invitum and gives no greater rights in the attached property than the debtor himself had. It must be observed, however, that where the defect in the title of the property is due to fraud against creditors, this rule does not apply."
It should be borne in mind that in the case at bar no fraud in the transaction between the Coast Fir Cedar Products Company and Etzel or between the plaintiff and Etzel is alleged or suggested.
It is contended, as we understand, that the rule enunciated inRhodes v. McGarry, 19 Or. 222 (23 P. 973), does not apply except in the case of an attachment of real estate where an outstanding title is asserted. Flegel v. Koss, 47 Or. 366, 371 (83 P. 847), *Page 568 which was a case wherein an attachment of hops was involved, applied the rule laid down in Rhodes v. McGarry, supra, that:
"`An attaching creditor, in order to be deemed a purchaser in good faith of the property as against one having an outstanding equity, must allege and prove all the facts necessary to establish that character of ownership in favor of a purchaser of such property as against such an equity'."
In the present case, as we view it, which was the main question upon the motion for a directed verdict, the plaintiff was not relying merely upon an outstanding equity, but was in fact the real owner of the property in question. In the Flegel case, it was mentioned that the construction placed upon this section of the code has been upheld in Meier v. Hess, 23 Or. 599, 601 (32 P. 755); Raymond v. Flavel, 27 Or. 219, 248 (40 P. 158);Dimmick v. Rosenfeld, 34 Or. 101, 105 (55 P. 100). See, also,Jennings v. Lentz, 50 Or. 483 (93 P. 327, 29 L.R.A. (N.S.) 584.
It is also contended that the rule applied in the case of garnishment does not apply in a case of attachment of property. With this contention we are unable to agree.
We have carefully examined the suggestions made by counsel.
Being satisfied with our former opinion, the petition for rehearing is denied.
RAND, C.J., CAMPBELL and BAILEY, JJ., concur. *Page 569