In discussing the measure of damages the court said: "The general rule is well established that the market value of the property at the time and place of conversion is the proper measure of damages: Eade et al. v. First National Bank of Condon, 117 Or. 47 ( 242 P. 833, 43 A.L.R. 374), citing other cases from this jurisdiction. The rule thus stated, however, is not applicable to the facts in every action for conversion. After all, it is the object of the law to make just compensation to the owner of personal property who has sustained damage by being deprived of its use and benefit.

The court erred in refusing to permit the plaintiff to plead, prove and recover reasonable attorney's fees as a part of its cause of action against the defendant. Section 89-4014; Hopkins v. Anderson (Cal.) 21 P.2d 560 and cases cited therein; Anderson v. Show, 12 P.2d 1045; Folen v. Saxton, 171 P. 699; Jones on Chattel Mortgages, § 488; Eade v. First National Bank (Ore.) 242 P. 833; Securities v. Mast (Ore.) 28 P.2d 635; Leesi v. Yamhill County (Ore.) 298 P. 908; Bank v. Howard, 158 P. 927; 11 C.J. 619, § 328. Plaintiff's reply was not a departure. 49 C.J. 345; Easton v. Quackenbush (Ore.) 168 P. 631; Beecher v. Thompson, 207 P. 1056; Church v. Brown, 272 P. 511; Lawrence v. Halverson, 83 P. 889; 21 R.C.L. 557; Houston v. Sledge, 2 L.R.A. 487. This case differs from Graves v. Burch, 26 Wyo. 192. There was no tender of payment.

The right, however, which the courts recognize in the mortgagee to maintain an action in trover for the conversion of the mortgaged property is doubtless based on the fact that the mortgagee has been deprived of his security, and therefore should be permitted to recover from the tort-feasor for the damages which he has suffered by the conversion. In Eade v. First National Bank, 117 Or. 47 ( 242 P. 833, 43 A.L.R. 374), this court, sanctioning a reasonable attorney's fee as part of the mortgagee's damages for conversion, remarked: "It would have been futile for plaintiffs to have instituted foreclosure proceedings, as execution upon the property was impossible.

"If, however, you should find that this property has a market value at the time and place of conversion, that would be the measure of damages." The general rule is well established that the market value of the property at the time and place of conversion is the proper measure of damages: Eade et al. v. First National Bank of Condon, 117 Or. 47 ( 242 P. 833, 43 A.L.R. 374), citing other cases from this jurisdiction. The rule thus stated, however, is not applicable to the facts in every action for conversion.

Defendant contends that the court erred in thus charging the jury. Ordinarily, in tort actions attorney's fees are not recoverable but in Eade v. First National Bank of Condon, 117 Or. 47 ( 242 P. 833, 43 A.L.R. 374), the court distinguished between ordinary tort cases and an action for conversion of mortgaged chattels and held that where a chattel mortgage had been given to secure a note providing for the payment of attorney's fees and the mortgaged chattels, because of the conversion, had been lost or destroyed and the mortgagee had been deprived of the right to foreclose his mortgage, the mortgagee could recover such sum as he would have been entitled to have recovered if the mortgage had been foreclosed. This contention, therefore, is foreclosed by that decision.

"When a copy of the mortgage attached to the complaint showed that the mortgagor was the owner of the property, the failure to allege such fact was not fatal, as against a demurrer and an objection to evidence, there being no motion to make the petition more definite and certain." 11 C.J. 636; Farmers', etc., Nat. Bank v. Gann, 95 Kan. 237, 148 P. 249. See, also, Brunswick-Balke-Collender Co. v. Brackett, 37 Minn. 58, 33 N.W. 214; Eade v. First National Bank, 117 Or. 47, 242 P. 833, 43 A.L.R. 374; Adams Frederick Co. v. South Omaha Nat. Bank (C.C.A.) 123 F. 641; Mastad v. Swedish Brethren, 83 Minn. 40, 44, 85 N.W. 913, 53 L.R.A. 803, 85 Am. St. Rep. 446. We think that, as against the general demurrer, the allegations of the complaint were sufficient to show that the plaintiffs claimed a special property in the cattle converted, by virtue of the chattel mortgage set forth in the complaint and to have the right to the immediate possession of these cattle when the defendants converted them.

Def.'s Reply, #25, 3. Courts in Oregon and other jurisdictions, however, have found that a chose in action can, in some situations, be subject to conversion. See Nichols v. Jackson Cty. Bank, 136 Or. 302, 307-08 (1931) (allowing a mortgagee to bring a conversion claim for mortgaged sheep based upon a viable mortgage); see also Eade v. First Nat'l Bank of Condon, 17 Or. 47 (1926) (distinguishing between ordinary conversion cases and an action for conversion of mortgaged chattels, holding that where a chattel mortgage had been given a secure note and, because of conversion, is lost or destroyed, the mortgagee could recover in a conversion action); SouthTrust bank v. Donely, 925 So.2d 934, 940 n.9 (2005) (noting that negotiable instrument is a chose in action subject to conversion). In its Reply, Liberty Mutual correctly identifies the legal definition of such a right.

It is well established in Oregon that when a conversion has already taken place by the wrongful delivery of property to a third party no demand is necessary as a condition of the right to bring an action for conversion of the property. Eade et al v. First Nat. Bank of Condon, 117 Or. 47, 51, 242 P. 833 (1926). See also Gowin v. Heider, 237 Or. 266, 305, 386 P.2d 1, 391 P.2d 630 (1963); Miller v. Lillard, 228 Or. 202, 205, 364 P.2d 766 (1961); Montgomery v. U.S. Nat'l Bank et al, 220 Or. 553, 568, 349 P.2d 464 (1960).

In any event, demand is only necessary where the original taking was rightful, and the jury here could have found that the taking was wrongful in its inception. Daniels v. Foster Kleiser, 95 Or. 502, 507, 187 P. 627; Eade v. First Nat. Bank, 117 Or. 47, 51, 242 P. 833. Defendant assigns error in the giving and refusal of certain instructions, but the questions raised are disposed of adversely to him by what we have already said.

While the theory on which the plaintiffs were sued in the foreclosure suit does not definitely appear, either by the allegations of the complaint or the recitals in the decree, we think that we are warranted in accepting the statement of counsel for the plaintiffs in their brief that the plaintiffs were made defendants in that suit "on the theory of a conversion by (them) * * * of the interest of the mortgagee in said crops." At least, that is the only theory of their liability which is at all apparent. See, Eade v. First National Bank of Condon, 117 Or. 47, 242 P. 833, 43 A.L.R. 374. The Hurleys, however, were not sued in tort but for a foreclosure of their mortgage, and there is nothing in the complaint from which it can be deduced that they committed a tort. The authority on which counsel rely is the Restatement, Restitution, 401, § 91, which reads: