C. Gotzian & Co. v. Norris
| Decision Date | 06 March 1931 |
| Docket Number | 6724. |
| Citation | 297 P. 489,89 Mont. 307 |
| Parties | C. GOTZIAN & CO. v. NORRIS, Sheriff, et al. |
| Court | Montana Supreme Court |
Appeal from District Court, Musselshell County; G. J. Jeffries Judge.
Action by C. Gotzian & Company against A. C. Norris, as sheriff of Musselshell County, Montana, and another. Judgment for defendants, and plaintiff appeals.
Reversed and remanded, with directions.
Emmet O'Sullivan, of Harlowton, and Belden & DeKalb and Merle C. Groene, all of Lewistown, for appellant.
W. W Mercer, of Roundup, and Ralph J. Anderson, of Lewistown, for respondents.
The complaint in this action consists of three causes of action. The first and second were decided in plaintiff's favor and no appeal has been taken from them. As to the third cause of action, judgment was entered in favor of defendants, and plaintiff has appealed therefrom. It seeks the recovery of damages in the sum of $427.55 from defendant Norris, as sheriff of Musselshell county, and from the defendant Maryland Casualty Company, as surety on his official bond for refusal to levy a writ of attachment. The action is based upon section 4781, Revised Codes 1921.
From the complaint it appears that Davis & Braisted Company, a corporation, commenced action in the district court of Wheatland county against the Musselshell Mercantile Company, a corporation, and caused a writ of attachment to issue on August 24, 1926. On August 26 the writ was placed in the hands of defendant Norris, as sheriff of Musselshell county, with a written præcipe, signed by the attorney representing plaintiff in the action, directing him to levy upon "the stock of goods held for sale by defendant [Musselshell Mercantile Company] at its store in Musselshell, Montana, and upon the money in the cash register, and in the safe in the store, if any," and to sell the same. This he refused to do. The value of the property described in the præcipe is alleged to be approximately $10,000. It is alleged that on September 22 judgment was entered in favor of Davis & Braisted Company for $426.90, no part of which has been paid; that on September 22, for consideration, the judgment and "all of the rights against the defendant herein" were assigned and transferred by Davis & Braisted Company to plaintiff in this action; and that plaintiff is the owner and holder of the judgment "and the assignee of all of the rights of the said judgment creditor against the defendants herein."
The questions determinative of the merits of the appeal are these: First, does the complaint sufficiently allege an assignment to plaintiff of the cause of action, otherwise sufficiently pleaded; second, was there competent proof of the assignment?
As above noted, the complaint alleges an assignment by Davis & Braisted Company of "all of the rights against the defendant herein," and that plaintiff is the "assignee of all of the rights of the said judgment creditor [Davis & Braisted Company] against the defendants herein." This, we think, was a sufficient allegation of an assignment to plaintiff of all rights of the Davis & Braisted Company against the defendants, and particularly in the absence of a special demurrer or motion to make more definite and certain.
The allegations of a pleading must be liberally construed, with a view to substantial justice. Section 9164, Rev. Codes 1921. And against the general objection for want of sufficient allegations, as here, whatever is necessarily implied in, or is reasonably to be inferred from, an allegation is to be taken as directly alleged. County of Silver Bow v. Davies, 40 Mont. 418, 107 P. 81; Gauss v. Trump, 48 Mont. 92, 135 P. 910; Woodward v. Melton, 58 Mont. 594, 194 P. 154; Grant v. Nihill, 64 Mont. 420, 210 P. 914; Grover v. Hines, 66 Mont. 230, 213 P. 250; Ray v. Divers, 72 Mont. 513, 234 P. 246; Friedrichsen v. Cobb, 84 Mont. 238, 275 P. 267.
Was the assignment proven? Emmet O'Sullivan testified that he acted as attorney for Davis & Braisted Company; that he drew up two assignments, sent them to Davis & Braisted, and in due course of mail they were returned to him duly executed. The two assignments are dated September 22, 1926. Both are ample in substance to cause a transfer and assignment, not only of the judgment against the Musselshell Mercantile Company, but of the cause of action held by Davis & Braisted Company against these defendants. One assignment purports to have been executed by Davis & Braisted Company, a corporation, by E. R. Snyder. It contained no acknowledgment. The other appears to have been executed by Davis & Braisted Company, a corporation, by R. S. Braisted, vice president. It contains the following acknowledgment:
The corporate seal was not attached to either assignment.
Defendants contend that the proper foundation was not laid for the introduction of these assignments in evidence. It may be conceded that the unacknowledged assignment was incompetent to prove plaintiff's right to maintain the action. Such was the holding of the Supreme Court of Alabama, in Allen v. Alston, 147 Ala. 609, 41 So. 159, where a similar assignment was involved.
The question presented under the acknowledged assignment is: Was there sufficient proof of the authority of the vice president to sign and acknowledge it?
An officer or agent who has direct superintendence of the affairs of a corporation may bind it by an assignment of a chose in action, but a subordinate officer may not do so unless expressly or impliedly authorized. 14a C.J. 418. The general rule is that in the absence of a statute giving probative force to an acknowledgment, it has no probative effect and must be proved when offered in evidence. 1 C.J 781. And instruments required by law to be acknowledged under Recording Acts do not embrace assignments. McCormick v. National Bank of Commerce (Tex. Civ. App.) 106 S.W. 747; Koloff v. Chicago, Mil. & P. S. Ry. Co., 71 Wash. 543, 129 P. 398. But in this state private writings may be acknowledged and proved in the same manner as real estate conveyances. This is by virtue of section 10596, Revised Codes 1921, which provides: "Every private writing, except last wills and testaments, may be acknowledged or proved and certified in the manner provided for the acknowledgment or proof of conveyances of real property, and the certificate of such acknowledgment or proof is prima facie evidence of the execution of the writing in the same manner as if it were a conveyance of real property." And section 10598 provides: "Every instrument conveying or affecting real property, acknowledged or proved and certified, as provided in the Civil Code, and every instrument authorized by law to be filed or recorded in the county clerk's office, may, together with...
To continue reading
Request your trial