Carpenter v. Nelson

• Decision Date: 15 June 1910
• Citation: 109 P. 857,41 Mont. 392
• Parties: CARPENTER v. NELSON.
• Court: Montana Supreme Court

109 P. 857

41 Mont. 392

CARPENTER v. NELSON.

Supreme Court of Montana

June 15, 1910

Appeal from District Court, Gallatin County; W. R. C. Stewart Judge.

Action by Albert Carpenter against Harry Nelson. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

J. L Staats, for appellant.

H. A Bolinger, for respondent.

SMITH J.

This case originated in a justice of the peace court of Gallatin county. The amended complaint filed in that court, upon which a trial was had, reads as follows: "Comes now the above-named plaintiff, and by leave of court first had and obtained files herein his amended complaint, and alleges the following facts: (1) That plaintiff on the 7th day of December, 1907, and continuously since has been and now is the absolute and unqualified owner and entitled to the immediate possession of the following described personal property, to wit: One yearling steer, branded 'X' on right hip and with right ear cropped. (2) That on the 7th day of December, 1907, this plaintiff purchased of defendant at Bozeman, Montana, fifty-five head of yearling steers fifty-four of which were branded with 'X' on the right hip and with right ear cropped, paying therefor the sum of seventeen and 50/100 dollars ($17.50) for each head thereof. (3) That in pursuance of said sale of said cattle by defendant to plaintiff on or about the same day, the defendant executed and delivered to plaintiff a bill of sale for said cattle, containing a description of said cattle as branded with 'X' on right hip and with right ear cropped. (4) That after the said cattle had been delivered by defendant to plaintiff pursuant to said sale, the plaintiff observed that one of the steers of said bunch purchased by him did not have the brand 'X' on the right hip of said animal, nor on any other place on said animal, nor was the right ear of said animal cropped, as described in said bill of sale, but that, instead of the brand 'X' on the right hip of said animal, as described in said bill of sale, there was the brand thus: on the right hip and both ears of said animal were cropped. (5) That plaintiff has frequently demanded of defendant, since said sale and before the commencement of this action, the animal as described in said bill of sale and which was purchased by plaintiff as aforesaid, and has frequently tendered before the commencement of this action back to defendant the steer obtained by plaintiff at said sale, the brand on which did not correspond with the description of said property in said bill of sale, and which said animal never at any time belonged to defendant, but that defendant has at all times refused to deliver to plaintiff the possession of the steer purchased by plaintiff, or to pay the plaintiff the sum of thirty-two and 00/100 dollars ($32.00) or any other sum, the value thereof, or to accept the tender of the steer that plaintiff obtained at said sale, but that defendant has converted said animal so claimed by plaintiff to his own use. (6) That defendant still wrongfully withholds and detains said animal so claimed by plaintiff from the possession of plaintiff, and converted by defendant to his own use as aforesaid, to plaintiff's damage: First, in the sum of thirty-two and 00/100 dollars ($32.00), the value of said property; and, secondly, in the sum of fifty and 00/100 dollars ($50.00), for time...