Bond Lumber Co. v. Timmons

• Decision Date: 31 May 1928
• Docket Number: 6310.
• Citation: 267 P. 802,82 Mont. 497
• Parties: BOND LUMBER CO. v. TIMMONS (MILK RIVER MOTOR CO., Intervener).
• Court: Montana Supreme Court

267 P. 802

82 Mont. 497

BOND LUMBER CO. v. TIMMONS (MILK RIVER MOTOR CO., Intervener).

No. 6310.

Supreme Court of Montana

May 31, 1928

Appeal from District Court, Hill County; Charles A. Rose, Judge.

Action by the Bond Lumber Company against R. C. Timmons, wherein the Milk River Motor Company intervenes. Judgment for defendant and intervener and plaintiff appeal. Affirmed.

C. R Stranahan, of Havre, for appellant.

Max P Kuhr, of Havre, for respondent.

GALEN J.

On December 27, 1926, this action was instituted by the Bond Lumber Company, as plaintiff, against R. C. Timmons, as defendant, to recover damages for the alleged conversion of a Ford automobile on December 24, 1926. The defendant filed an answer denying affirmative matters alleged in the plaintiff's complaint, and, by way of affirmative defense, averred that on and prior to November 29, 1926, the Milk River Motor Company, a corporation, of Havre, Montana "became and was the owner and in the possession and entitled to the possession" of the automobile; that on that date it agreed to sell it to one Palmer O. Gorder, of Hill county, for the sum of $596.85, of which amount the sum of $400 was paid before delivery of the automobile to Gorder, and that the latter agreed to pay the balance, amounting to $196.85, within three months thereafter, and thereupon executed and delivered a conditional sale contract covering the transaction, which was duly filed for record, a copy of which is appended as a part of the answer; that ever since the execution of such contract the "Milk River Motor Company has been and still is entitled to the possession" of the automobile. It is then alleged that prior to December 23, 1926, the terms of the contract were by Gorder breached, "in that he transferred his interest in said contract and said automobile to this plaintiff; that on December 23, 1926, the Milk River Motor Company, deeming the said automobile in danger of misuse or confiscation, elected to, and did, declare the entire unpaid balance due under said contract immediately due and payable, and did elect to exercise the powers given to it under the terms of said conditional sale contract"; that it "regularly made and constituted this defendant as its agent for the purpose of seizing, repossessing, and selling said automobile; and that, after notice of sale duly and regularly given as provided in said contract" and by the laws of Montana, the defendant, as the agent of the Milk River Motor Company, sold the automobile at public auction.

The Milk River Motor Company intervened in the action, and by its complaint made claim of ownership and right of possession to the automobile upon allegations similar to those contained in the defendant's answer.

Upon issue joined, the cause was tried before a jury, and at the conclusion of all of the evidence introduced by the parties to the action the court submitted but one question to the jury, viz. the value of the automobile at the time of its alleged conversion. The jury found such value to be the sum of $375, and thereupon judgment was by the court entered in favor of the defendant and the intervener; it being decreed that the plaintiff take nothing by reason of the action and that it be required to pay the costs. The plaintiff has appealed from the judgment.

At the outset, we are confronted with motions made by the respondents to dismiss the appeal (1) by reason of the appeal not having been taken within the time prescribed by sta...