Bohart v. Songer

• Decision Date: 05 April 1940
• Docket Number: 8058.
• Citation: Bohart v. Songer, 110 Mont. 405, 101 P.2d 64 (Mont. 1940)
• Parties: BOHART v. SONGER et al.
• Court: Montana Supreme Court

101 P.2d 64

110 Mont. 405

BOHART v. SONGER et al.

No. 8058.

Supreme Court of Montana

April 5, 1940

Appeal from Thirteenth District Court, Yellowstone County; B. H Harwood, Judge.

Action by W. O. Bohart against Alvin Songer and another, for conversion of the proceeds obtained from the sale of a cow. From a judgment for defendants, plaintiff appeals.

Affirmed.

S. F Bohart and L. M. Johnson, both of Bozeman, for appellant.

H. J Freebourn, Atty. Gen., and E. K. Matson, Asst. Atty. Gen., for respondents.

ERICKSON Justice.

This is an action for conversion of the proceeds obtained from the sale of a cow. Plaintiff alleges that he purchased the animal in question from one Freeman, the lawful owner thereof, on July 17, 1938, and obtained Freeman's bill of sale therefor. The cow was inspected at Bozeman and subsequently shipped to Billings where it was again inspected and there sold. The proceeds from the sale were impounded by a state livestock inspector, one of the defendants in this action. He turned the proceeds over to the Montana Livestock Commission to be held pending determination of the ownership of the cow. Demand was made immediately for the money by plaintiff, and refused by the defendant commission. A few days thereafter suit was instituted in the justice court to recover the proceeds.

Defendants answered setting up as a defense to the alleged conversion, that the seizure was made in the performance of official duty; denied on information and belief that Freeman was the lawful owner of the cow; alleged that defendant inspector at Billings discovered that the cow at the time of the sale bore an unvented three-circle brand which was the duly recorded brand of one A. A. Anderson as of the date of July 23, 1936; that at the time of the sale there was on file in the office of the secretary of the Montana Livestock Commission a notice of chattel mortgage and notice of renewal thereof upon the cattle of A. A. Anderson bearing the described brand, the mortgage being filed August 12, 1937, and the renewal March 17, 1938; that plaintiff at the time of sale failed, refused and neglected to furnish the defendants or the stock inspector at Bozeman, any evidence or proof of plaintiff's ownership other than the bill of sale from Freeman; that no bill of sale from Anderson, record owner of the brand appearing on the cow, was ever presented to defendants or anyone, and no satisfaction or release of mortgage on the cattle bearing the Anderson brand was ever filed with the recorder of marks and brands or presented to defendants; that since no bill of sale from Anderson, prima facie owner of the cow, was produced nor any other evidence of plaintiff's ownership other than the Freeman bill of sale, and the brand being an unvented one, defendant Songer had reason to believe, and did believe, that the cow had been stolen, and therefore seized the proceeds of the sale, as he was authorized by statute to do; and that the proceeds were turned over to the commission until it could be determined whether the cow had been stolen, or until plaintiff should by satisfactory evidence establish his ownership of the cow or his legal right to the proceeds of the sale.

The issues were determined in favor of defendants in the justice court. Plaintiff appealed to the district court where the issues were again found in defendants' favor. The matter is here on appeal from the judgment of the district court. The only question involved is whether the impounding of the proceeds obtained from the sale of the cow constituted a conversion by the livestock commission.

At the outset it must be said that our review has been necessarily limited because of the absence of a bill of exceptions incorporating the evidence. In such case, the well-established rule is that this court cannot consider anything aside from that part of the judgment roll that is before it. Sec. 9390, Rev.Codes; Bohon v. Bitter Root Sales Co., 82 Mont. 260, 266 P. 645, and cases therein cited.

Many assignments of error are directed to the lower court's findings of fact and conclusions of law. It follows from the rule just noted that we are precluded from disturbing those findings in the absence of the evidence from the record. Thelen v. Vogel, 86 Mont. 33, 281 P. 753; and Luebben v. Metlen, Mont., 100 P.2d 935, decided March 25, 1940, and not yet reported [in state report].

In view of the condition of the record, it will only be necessary in deciding whether defendants are guilty of conversion to determine the following question: Do the answer and facts as found support the conclusions of law and judgment of the court? If this question can be answered affirmatively, then the presumption follows that the evidence was sufficient to warrant the result reached. Thelen v. Vogel, supra; Bond Lumber Co. v. Timmons, 82 Mont. 497, 267 P. 802.

This being an action for conversion, the elements of proof required to sustain it are: (1) Plaintiff's ownership and right of possession of the chattel involved; (2) conversion thereof by the defendants; and (3) resulting damages. Klind v. Valley County Bank of Hinsdale, 69 Mont. 386, 222 P. 439.

The findings of fact of the trial court embracing the issues framed by the complaint and answer disclose that plaintiff failed to establish either elements (1) or (2). Those findings are substantially in accord with the statement of facts heretofore set out, particularly that satisfactory proof of ownership of the cow was not supplied by plaintiff nor his legal right to the proceeds of the sale established. Failure of proof as to this element was fatal to the action. See Guthrie v. Holloran, 90 Mont. 373, 3 P.2d 406.

However aside from this lack of proof or ownership, the court found in accordance with defendants' answer, and presumably their proof that the inspector had reason to believe that the cow was stolen and therefore...