Decided November 11, 1913.
On the Merits.
(136 Pac. 13.)
For appellant there was a brief over the names of Mr. Stephen A. Lowell, Mr. Errett Hieles and Mr. Otis Patterson, with an oral argument by Mr. Lowell.
For respondent there was a brief and an oral argu- . ment by Mr. A. D. Leedy.
*307En Banc. Me. Justice McNaey delivered the opinion of the court.
This is an action of replevin whereby plaintiff seeks to recover from defendant the possession of two cows claimed to have been taken unlawfully from plaintiff on June 17, 1912. Demand was made upon defendant for their return 12 days later. Defendant, after denying, upon information and belief, plaintiff’s ownership and possession of the property, asserted as a separate defense that prior to the 17th day of June, 1912, defendant obtained the cows by exchange of other property from one Floyd Gilcrest, to whom the property was redelivered on July 2,1912. Plaintiff replied by general denial. The trial of the case resulted in a verdict for defendant.
2. During the progress of the trial defendant, for the purpose of showing knowledge upon the part of plaintiff of the return of the cattle to Gilcrest, gave testimony to the effect that he overheard a conversation between plaintiff and her daughter wherein the former was told the cows had been redelivered to Gil-crest. Plaintiff’s counsel objected to the testimony for the reason that the witness was an eavesdropper and thereby committed “an act of gross impropriety and a moral wrong and a witness testifying to such a conversation could not show any of the elements or conditions which must first be shown in order to admit evidence of such a conversation.” Defendant overheard the conversation, to which objection was made, at a point on the telephone intermediate between the home of plaintiff and her daughter, who is the wife of Gilcrest. In qualifying himself as a witness, defendant stated that by chance he took down the receiver of the telephone when the parties were engaged in con*308versation and that he heard the declaration and knew the voices of the parties conversing. Since a time practically concurrent with the use of the telephone as a medium of communication, the courts have held that a conversation had over the telephone was admissible when the witness could testify he recognized the voice of the party speaking. While the practice of eavesdropping or “cutting in” on a telephone is most despicable, yet we cannot say as a rule of evidentiary law that the practice of this impropriety disqualifies a person who has qualified himself by testifying he recognized the voice of the speaker. Under the circumstances, the question whether the conversation did take place, its nature, and whether defendant correctly identified the voices engaged in the conversation was a fact for the jury.
3. Complaint is made that the court erred in its refusal to give the following instruction:
‘ ‘ The court instructs the jury that if you find from a preponderance of the evidence that defendant obtained possession of these cows from Floyd Gilcrest in a trade for a wagon, but such trade was made subject to the approval of the plaintiff, and if plaintiff refused to accept such trade and demanded possession of these cows from defendant, and defendant refused to deliver them to plaintiff, your verdict should be for plaintiff, and any transfer or surrender of said cows by defendant to the said Gilcrest after said demand and before the commencement of this action, in order to avoid this action, would not avail him anything and the verdict should be for the plaintiff.”
The court did advise the jury at length by saying in substance that a wrongful taking means a taking without right and without lawful authority; that if Gilcrest traded the property in dispute to defendant, when he (Gilcrest) was not the owner thereof, the possession of defendant would be wrongful, even *309though he believed that Gilcrest was the owner or had a right to dispose of the property; that if defendant returned the property to Gilcrest, after demand by plaintiff, and prior to the commencement of the action, and that plaintiff had no knowledge of the return of the property, such condition would constitute an unlawful detention by defendant, but if it appeared that after demand had been made for the return of the cows, and prior to the commencement of the action, defendant delivered the property to Gilcrest and plaintiff had knowledge thereof, such situation would be a defense to the action.
"We think the court’s counsel was even more favorable to plaintiff than the law contemplates, and that no error was committed in refusing to pass to the jury the instructions requested by the plaintiff. There was no dispute in the testimony that defendant seasonably after the demand made by plaintiff, and prior to the institution of the action, returned the property to Gilcrest, from whom it had been procured.
4. As an abstract proposition of law, this court has become wedded to the rule that, in order to maintain replevin, defendant should have either the actual or constructive possession of the property sought to be recovered at the time of the commencement of the action, so that defendant, if judgment be rendered against him, might make delivery thereof to plaintiff: Krebs Hop Co. v. Taylor, 52 Or. 627 (97 Pac. 44, 98 Pac. 494); Jenkins v. Ontario, 44 Or. 72 (74 Pac. 466, 102 Am. St. Rep. 625). Judgment Affirmed.