Casco Mercantile & Trust Co. v. Central Sav. Bank & Trust Co.

• Decision Date: 02 June 1924
• Docket Number: 10758.
• Citation: 75 Colo. 478,226 P. 868
• Parties: CASCO MERCANTILE & TRUST CO. v. CENTRAL SAVINGS BANK & TRUST CO. et al.
• Court: Colorado Supreme Court

226 P. 868

75 Colo. 478

CASCO MERCANTILE & TRUST CO. v. CENTRAL SAVINGS BANK & TRUST CO. et al.

No. 10758.

Supreme Court of Colorado

June 2, 1924

Department 2.

Error to District Court, Prowers County; A. F. Hollenbeck, Judge.

Action by the Casco Mercantile & Trust Company against the Central Savings Bank & Trust Company and others. Judgment of nonsuit and plaintiff brings error.

Reversed and new trial granted.

M. G. Saunders, E. F. Chambers, and S. S. Packard all of Pueblo, for plaintiff in error.

Gordon & Gordon, of Lamar, and Samuel E. Marshall, of Denver, for defendants in error.

DENISON J.

The plaintiff in error was nonsuited in an action against the defendants in error for the conversion of certain cattle and brings the case here for review.

The complaint contained a much more detailed statement of the facts than was necessary, but it was good under Littell v. Brayton Co., 70 Colo. 286, 201 P. 34. It follows, from the decision in Baker v. Cordwell, 6 Colo. 199, ^[1] that all that is necessary under the Code is to allege that defendant took certain goods of the plaintiff (describing them) and converted them to his own use, which would be equivalent to trespass de bonis at common law, or that he came into possession of certain goods of the plaintiff (describing them) and converted them to his own use, which would be equivalent to trover at common law with the fictions eliminated. Under the phrase 'of the plaintiff,' the plaintiff may prove at the trial any kind of general or special property that will support his right of immediate possession of the goods at the time of the conversion, and under a denial that said goods were the goods of the plaintiff the defendant may give any competent evidence tending to controvert the general or special property in plaintiff. Williams v. Springfield, 228 P. ----, decided at the present term; Payne v. Williams, 62 Colo. 86, 160 P. 196. The determination of such an issue will determine the case, but the determination of questions attempted to be raised by denials of the evidential details will not determine the case and they are therefore not issues. Code 1921, §§ 78, 188, 190. This is all we need to say about the questions raised concerning the pleadings and the denials therein. We shall treat the case, as in the briefs, as if plaintiff had alleged ownership of the cattle described in the complaint and a taking and conversion by the defendants, and they had denied both, and these were the only issues. It follows, from the above, that the two questions to be tried by the jury were whether the plaintiff had property, special or general, in the cattle described in the complaint, and whether the defendants took those cattle.

The plaintiff claimed by virtue of a chattel mortgage, and the court below thought that the mortgage did not sufficiently describe the cattle; hence the nonsuit. It described the property as

'Two hundred forty-eight (248) head of cattle, more particularly described as follows, to wit: * * *

41 calves, branded OH on left hip with tally brand + on left shoulder.

41 yearling steers and heifers, branded OH on left hip, with tally brand + on left shoulder.

41 two year old steers, branded OH on left hip, with tally brand + on left shoulder.

248

'Ninety per cent. of the above are white-face cattle. * * *'

The mortgagor was mentioned as a citizen and resident of Prowers county, and the cattle as in that county, and as held and to be kept on the Dodge ranch, 18 miles south of Granada Prowers county. There was a special agreement that they were there, and that, if Dodge, the mortgagor, owned a larger number of cattle, the mortgagees might at any time select from the entire number cattle equal in number to those mentioned in the mortgage. The tally brand +, mentioned as being on these cattle, was not on them. Dodge agreed to put it on, but that was never done. Dodge owned a considerable number of other cattle like those mortgaged.

The evidence shows that the cattle to be mortgaged were counted out and tallied and, as said above, Dodge was to mark them with the tally brand, but never did so. The mortgage thereupon delivered was, therefore, good against Dodge for the cattle so pointed out. It is therefore good against the defendants, unless they are innocent purchasers for value. N.W. Bank v. Freeman, 171 U.S. 620, 19 S.Ct. 36, 43 L.Ed 307. The answer consisted of denials only. There was no plea that the defendants were innocent purchasers without notice. Bassick Min. Co. v. Davis, 11 Colo. 130, 17 P. 294. The defendants are therefore in no better position than Dodge would be if the suit were against him. Fowler v. Merrill, 11 How. 375, 395, 13 L.Ed. 736. And, since they knew when they took the cattle which they did take that they included the...