Bates v. Capital State Bank

• Decision Date: 11 January 1912
• Citation: 121 P. 561,21 Idaho 141
• Parties: CADDIE BATES, Appellant, v. THE CAPITAL STATE BANK et al., Respondents
• Court: Idaho Supreme Court

121 P. 561

21 Idaho 141

CADDIE BATES, Appellant, v. THE CAPITAL STATE BANK et al., Respondents

Supreme Court of Idaho

January 11, 1912

REPLEVIN-CLAIM AND DELIVERY-POSSESSION OF PROPERTY-MARRIED WOMAN-BONDS-DEPOSITED FOR SAFEKEEPING-PLEDGE OF BONDS-COLLATERAL SECURITY-STATUTORY CONSTRUCTION-CAPACITY TO CONTRACT-CONSIDERATION.

(Syllabus by the court.)

1. Under the provisions of the state constitution, sec. 5, art 1, and sec. 4220, Rev. Codes, there is but one form of civil action in this state for the enforcement or protection of private rights and the redress or prevention of private wrongs.

2. Sec 4168, Rev. Codes, provides what a complaint in an action must contain, and among other things, it must contain a statement of the facts constituting the cause of action, in ordinary and concise language.

3. Under the provisions of the state constitution and the Code of Civil Procedure, the technicalities of the common law in regard to pleadings have been dispensed with, and the plaintiff need only state his cause in ordinary and concise language without regard to the ancient forms of pleadings and where that is done, he can be sent out of court only when upon his alleged facts he is not entitled to any relief either at law or in equity.

4. Under the provisions of sec. 4271, Rev. Codes, the plaintiff in an action to recover the possession of personal property may, at the time of issuing the summons or at any time before an answer is filed, claim the immediate delivery of such property to him as provided in the chapter concerning claim and delivery of personal property.

5. The common-law action of replevin is not in force in this state and the provisions of chap. 2, title 7, Rev. Codes, take its place.

6. Under the common law, replevin would not lie against a defendant who had parted with the possession of the chattel prior to the commencement of the action.

7. Under the provisions of said sec. 4271, it is left optional with the plaintiff whether he demand immediate possession of the personal property or not.

8. Under the provisions of sec. 4272, where immediate delivery of personal property is claimed, an affidavit must be filed by the plaintiff setting forth certain facts, and under the provisions of sec. 4273 he must also indorse on the affidavit written instructions to the sheriff and give a written undertaking as provided by sec. 4274.

9. The writ of replevin under the common law was a judicial writ and at first only issued by the king's chancellor. The action of replevin was begun by suing out the writ.

10. Under the provisions of sec. 4138, Rev. Codes, an action to recover the possession of personal property is commenced by filing a complaint, and the filing of the affidavit and undertaking in "claim and delivery" is not required in order to commence or maintain the action, and the substitute for the writ of replevin, under our statute, is the written direction of the plaintiff on the affidavit in attachment, and is not required in order to commence or maintain the action.

11. Under the provisions of sec. 4453, Rev. Codes, if the plaintiff is successful in his action, judgment must be for the possession of the property or the value thereof in case a delivery cannot be had.

12. Under the provisions of the "claim and delivery" statutes of this state, an action may be maintained against a person to recover the possession of personal property although he has not the possession of it at the time of the commencement of the action.

13. Held, under the facts of this case that the plaintiff, a married woman, on the 23d day of August, 1901, deposited the mortgage bonds referred to in the complaint in the defendant bank for safekeeping and not as collateral security for the payment of her husband's debts.

14. On the 15th of April, 1904, about two years after the death of her husband, plaintiff entered into a contract with said bank, whereby she agreed to turn said mortgage bonds over to the bank for the return to her of her deceased husband's promissory notes, amounting in all to about $17,000. The bank thereupon agreed to and did deliver to her said promissory notes with the understanding and agreement that the bank would proceed and sell said mortgage bonds for the best price obtainable, and if it received therefor more than sufficient to pay the indebtedness represented by said promissory notes, the surplus would be paid over to her. Held, that she had the authority and capacity to make said contract, and that she received a valuable consideration therefor.

15. Held, that the contract of April 15, 1904, was not based upon a void contract.

16. Under the provisions of sec. 2498, Rev. Stats. of 1887, the husband had the management and control of the separate property of the wife during the continuance of the marriage, but no sale or other alienation of any part of such property could be made or any lien or encumbrance created thereon unless by an instrument in writing signed by the husband and wife and acknowledged by her on examination separate and apart from her husband, as upon a conveyance of real estate.

17. Persons competent to contract may select as a consideration some right or forbearance which the law recognizes, and if they receive just what they bargain for, the law will not inquire into the wisdom of accepting such consideration or the profit or loss arising out of the transaction.

APPEAL from the District Court of the Third Judicial District for Ada County. Hon. John F. MacLane, Judge.

Action to recover possession of certain mortgage bonds or their value. Judgment for defendants. Affirmed.

Judgment of the trial court affirmed, with costs in favor of respondents.

Jackson, Quarles & Taylor, for Appellant.

An attempt to ratify a void contract is itself void. ( Thompson v. Hudgins, 116 Ala. 93, 22 So. 632; Union Nat. Bank v. Hartwell, 84 Ala. 379, 40 So. 156; Page on Contracts, sec. 275.)

The said agreement Exhibit "C," was without consideration. It lacked mutuality. (Maher v. Martin, 43 Ind. 314; Musick v. Dodson, 76 Mo. 624, 43 Am. Rep. 780; 1 Parsons on Contracts, 434; Wilcox v. Arnold, 116 N.C. 708, 21 S.E. 434; Christian v. Niagara Ins. Co., 101 Ala. 634, 14 So. 374; Doe v. Culverwheel, 35 Cal. 291; Vogel v. Pekoc, 157 Ill. 339, 42 N.E. 386, 30 L. R. A. 491.)

There is no allegation in the pleadings, and no proof in the record, to show that the note signed by the appellant with her husband to the bank was for the benefit of her separate property, and the presumption is that it was her husband's debt. At any rate, she was not liable thereon, and it was, as against her, void. (Bank of Commerce v. Baldwin, 12 Idaho 202, 85 P. 497; Holt v. Gridley, 7 Idaho 416, 63 P. 188; Jaeckel v. Pease, 6 Idaho 131, 53 P. 399; Strode v. Miller, 7 Idaho 16, 59 P. 893; McDonald v. Rozen, 8 Idaho 353, 69 P. 125; Dernham v. Rowley, 4 Idaho 753, 44 P. 643.)

Under our code, forms are of no importance, and have been abolished by our constitution. (Const., art. 5, sec. 1; Rauh v. Oliver, 10 Idaho 3, 77 P. 20; Bates v. Bank, 18 Idaho 429, 110 P. 277.)

It is not necessary that the defendant be in possession when demand is made or suit brought. (Harkey v. Tillman, 40 Ark. 551; Caldwell v. Fenwick, 2 Dana (Ky.), 333; Sinnott v. Feiock, 165 N.Y. 444, 80 Am. St. 736, 59 N.E. 265, 53 L. R. A. 565; Tyler v. Young, 46 Misc. 575, 92 N.Y.S. 818; Jones v. Richards, 50 Misc. 645, 98 N.Y.S. 698; Newberry v. Gibson, 125 Iowa 575, 101 N.W. 428; Murdoch v. Tuten, 76 S.C. 502, 57 S.E. 547; Segars v. Segars, 82 S.C. 196, 63 S.E. 891; Andrews v. Hoeslich, 47 Wash. 220, 125 Am. St. 896, 14 Ann. Cas. 1118, 91 P. 772, 18 L. R. A., N. S., 1265; Helman v. Withers, 3 Ind.App. 532, 50 Am. St. 295, 30 N.E. 5; Schmidt v. Bender, 39 Kan. 437, 18 P. 491; McBrian v. Morrison, 55 Mich. 351, 21 N.W. 368; Bates v. Bank, 18 Idaho 429, 110 P. 277.)

Wyman & Wyman, for Respondent Meholin.

As to an executed contract, the matter of consideration is immaterial and will not be inquired into. (Page on Contracts, sec. 19; Bishop on Contracts, sec. 81.)

As to the contract of 1904, the surrender of these enforceable notes and the agreement to perform these services constituted a valuable consideration. (Page on Contracts, sec. 322.)

A subsequent promise, after acquiring capacity to contract, to perform a contract made before such capacity is acquired is enforceable if based upon a new consideration. (Page on Contracts, sec. 931.)

An action of replevin cannot be maintained against a defendant not shown to be in possession of the property sought to be replevied at the time of the commencement of the action, unless it can be shown that he has disposed of the property for the purpose of avoiding the writ. (Shinn on Replevin, sec. 164; Robb v. Dobrinski, 14 Okla. 563, 1 Ann. Cas. 981, 78 P. 101; Depriest v. McKinstry, 38 Neb. 194, 56 N.W. 806; Sullivan v. Girson, 39 Mont. 274, 102 P. 320; Timp v. Dockham, 32 Wis. 146.)

It lies only on behalf of one entitled to the possession as against one having at the time the suit is begun actual or constructive possession and control of the property. (24 Am. & Eng. Ency. of Law, pp. 495, 496; Cobbey on Replevin, secs. 61, 63; Gildas v. Crosby, 61 Mich. 413, 28 N.W. 153; Myrick v. National C. R. Co. (Miss.), 25 So. 155; McCormick v. McCormick, 40 Miss. 760; Riciotto v. Clement, 94 Cal. 105; Ramsdell v. Buswell, 54 Me. 546; Standard Oil Co. v. Bretz, 98 Ind. 231; Hall v. White, 106 Mass. 599; Henderson v. Hart, 122 Cal. 332, 54 P. 1110; Hall v. Kalamazoo, 131 Mich. 404, 91 N.W. 615; Gallick v. Bordeaux, 31 Mont. 328, 78 P. 583.)

Our statute was borrowed from California, and the rule in that state has always been in accord with the overwhelming weight of authority. (Richards v. Morey, 133 Cal. 437, 65 P. 886.)

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