Averill Machinery Co. v. Vollmer-Clearwater Co., Ltd.

Citation166 P. 253,30 Idaho 587
PartiesTHE AVERILL MACHINERY COMPANY, a Corporation, THE GARDEN CITY FEEDER COMPANY, a Corporation, and JOHN W. SOMMERVILLE, as Executor of the Last Will and Testament of J. H. SOMMERVILLE, Deceased, Respondents, v. THE VOLLMER-CLEARWATER COMPANY, LTD., a Corporation, Appellant
Decision Date30 June 1917
CourtUnited States State Supreme Court of Idaho


1. Evidence examined and found sufficient to sustain the findings of the lower court to the effect that the chattel mortgages in ques- tion were valid and subsisting liens upon the crop of barley, and that appellant wrongfully and unlawfully converted a portion of the same to its own use.

2. In an action for damages for the conversion of personal property, the rule of damages to be applied in the absence of special circumstances is the market value of the property at the time of conversion, plus interest.

[As to measure of damages in actions of trover, see notes in 24 Am.Dec. 70; 54 Am.Rep. 421]

APPEAL from the District Court of the Second Judicial District, for Lewis County. Hon. Edgar C. Steele, Judge.

Action to foreclose chattel mortgages. Judgment for cross-plaintiffs. Modified and affirmed.

Cause remanded with instructions. No costs awarded on this appeal.

G. W Tannahill, for Appellant.

There is the strongest kind of evidence that C. W. Rounds was the owner of the grain, and if so, F. W. Rounds had no right to mortgage it or attempt to do so, and any mortgage he might execute would be void. He could only mortgage such interest as he might have in the property. (Bradley Land & Lbr Co. v. Eastern Mfg. Co., 104 Me. 203, 71 A. 710; Benjamin Schwarz & Sons v. Kennedy, 142 F. 1027; Morris v. Brown, 177 Ala. 389, 58 So. 910; Smith v. J. I. Case Threshing Mach. Co., 50 Pa. Super. Ct. 92; Roper Wholesale Grocery Co. v. Faver, 8 Ga.App. 178, 68 S.E 883.)

The value which property has at the time of the conversion whether market or actual, is the basis of damages in trover. The rule is not affected by either an increase or a decrease in its value subsequent to the conversion of it. ( Hepburn v. Sewell, 5 Har. & J. (Md.) 211, 9 Am. Dec. 512; Bates v. Stansell, 19 Mich. 91; Carter v. Feland, 17 Mo. 383; Hendricks v. Evans, 46 Mo.App. 313; Burney v. Pledger, 3 Rich. L. (S. C.) 191; 13 Cyc. 170.)

Where personal property is taken possession of without authority of law and is retained and converted to the use of the person taking such possession in trover by the owner, the plaintiff is entitled to recover, as a general rule, the market value of such property at the time it was taken. (Unfried v. Libert, 20 Idaho 708, 119 P. 885; Bates v. Nyberg Automobile Works, 170 Ill.App. 301; Hautala v. Dover, 176 Mich. 366, 142 N.W. 579; Whittler v. Sharp, 43 Utah 419, 135 P. 112, 49 L. R. A., N. S., 931; Hassam v. J. E. Safford Lumber Co., 82 Vt. 444, 74 A. 197; Hart v. Brierley, 189 Mass. 598, 76 N.E. 286.)

G. Orr McMinimy, for Respondents.

If the property converted was of fluctuating value, the owner may recover, according to some authorities, the highest market value within a reasonable time after conversion; according to others, the highest value attained between the time of conversion and the bringing of the action, with interest; but by the weight of authority, the highest value between conversion and the day of trial. (Lee v. Mathews, 10 Ala. 682, 44 Am. Dec. 498; 38 Cyc. 2096; Sharpe v. Barney, 114 Ala. 361, 21 So. 490; Fromm v. Sierra Nevada S. Min. Co., 61 Cal. 629; Barrante v. Garratt, 50 Cal. 112; Lynch v. McGhan, 7 Cal.App. 132, 93 P. 1044; Straw v. Jenks, 6 Dak. 414, 43 N.W. 941; Robinson Mining Co. v. Riepe, 37 Nev. 27, 138 P. 910; Thompson v. Carter, 6 Ga.App. 604, 65 S.E. 599.)

RICE, J. Budge, C. J., and Morgan, J., concur.



During the year 1913, one F. W. Rounds was the owner of Lots 3 and 4 and the E. 1/ 2 SW. 1/4 of Sec. 7, Tp. 34 N. of R. 1 W., B. M. On the 15th day of May, 1913, F. W. Rounds gave a chattel mortgage to John W. Sommerville, as executor of the last will and testament of J. H. Sommerville, deceased, on an undivided one-half of all the crop of grain of any kind or character growing or to be grown during the season of 1913 upon the said land. On the 8th day of August of the same year, F. W. Rounds and wife executed a chattel mortgage to the Averill Machinery Company, a corporation, on an undivided one-half of the crop of barley then growing on the said real estate, and on the last-mentioned date he and his wife executed another chattel mortgage to the Garden City Feeder Company, a corporation, on an undivided one-half of the crop of barley then growing on the said real estate.

It appears that during the year 1913 the only crop of grain raised on the said real estate was barley. This action was originally instituted by one W. E. Chapman for the purpose of foreclosing a labor lien upon the crop of barley, and it appears that Chapman prosecuted his action to a judgment and enough of the barley was sold to satisfy his claim. John W. Sommerville, as executor, the Averill Machinery Company and the Garden City Feeder Company joined in a cross-complaint in said action for the purpose of foreclosing their chattel mortgages, and to secure judgment against the Vollmer-Clearwater Company for the value of the barley not sold to satisfy the claim of Chapman which they alleged had been converted by the last-mentioned corporation. The Vollmer-Clearwater Company answered, denying that the mortgages above mentioned covered any grain stored in their warehouse, except ninety sacks, and denying conversion of any grain to their own use.

The Vollmer-Clearwater Company claim that in the spring of 1913 F. W. Rounds made an agreement with his son, C. W. Rounds, whereby in consideration for his work and labor in planting and caring for the crop the said C. W. Rounds would be given an undivided one-half interest in the crop raised on the summer-fallowed portion of the above-described land, which would be about one-half thereof; that when the grain was delivered, warehouse receipts were issued to C. W. Rounds for his half of the barley raised on the summer-fallowed land; that the company purchased the C. W. Rounds grain and applied the proceeds to the payment of certain indebtedness due the company from F. W. Rounds, C. W. Rounds and R. M. Rounds, a brother of C. W. Rounds, and that the mortgages above mentioned did not cover the interest of C. W. Rounds in said crop.

The only evidence introduced by the Vollmer-Clearwater Company in support of their claim of ownership in C. W. Rounds is contained in the following testimony of R. M. Rounds, a son of F. W. Rounds and brother of C. W. Rounds:

"Q. Did you hear any arrangement or agreement or understanding between your father and C. W. Rounds relative to this Sommerville land?

"A. I recollect that my father and C. W. and myself was at the place, and that they were talking about an agreement for an undivided half of the crop.

"Q. On the summer-fallow land?

"A. Land they were working together.

"Q. How much was your father to receive out of it?

"A. One-half.

"Q. And how much was C. W. Rounds to receive?

"A. One-half."

It does not appear when this alleged conversation took place. It will be noted that the alleged agreement was not confined to summer-fallowed land, but to all the land F. W. Rounds was working. For anything that appears in the evidence the agreement may have been made after the mortgages were given. Witness George Emick testified that he lived on the Rounds land that season; that he prepared the land for seeding and did a portion of the seeding, and that so far as he knew C. W. Rounds did not do any work on the grain at all. We do not think the testimony of R. M. Rounds would sustain a finding of ownership of any part of the grain in C. W. Rounds.

Upon the entire evidence the court was amply justified in finding that the mortgages above mentioned were valid and subsisting liens upon the crop of barley, and that the...

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