Davidson v. Davidson

• Decision Date: 30 December 1947
• Docket Number: 7368
• Citation: 188 P.2d 329,68 Idaho 58
• Parties: DAVIDSON v. DAVIDSON
• Court: Idaho Supreme Court

188 P.2d 329

68 Idaho 58

DAVIDSON v. DAVIDSON

No. 7368

Supreme Court of Idaho

December 30, 1947

Appeal from District Court, Eleventh District, Cassia County; T Bailey Lee, Judge.

Judgment affirmed.

S. T Lowe and Kales E. Lowe, both of Burley, for appellant.

A plea of the statute of limitations is one in the nature of confession and avoidance. It admits the existence of the cause of action to which it is directed and seeks to avoid its effect by raising a bar to the remedy. 41 Am.Jur 403-404, Secs. 158-159; Smith v. Marley, 39 Idaho 779, 230 P. 769; 49 C.J. 294.

Such a plea relates only to the cause of action alleged in the complaint and does not authorize the respondent to go behind it to another and different cause of action. Rogers v. Oregon-Washington R. & Nav. Co., 28 Idaho 609, 156 P. 98; Eldridge v. Idaho State Penitentiary, 54 Idaho 213, 30 P.2d 781.

A mere claim of ownership of the cattle whether made openly and notoriously or with knowledge of the owner will not start the running of the statute of limitations. Bowe v. Palmer, 36 Utah 214, 102 P. 1007, 24 L.R.A.,N.S., 226, 21 Ann.Cas. 1191; McPheters v. Page, 83 Me. 234, 22 A. 101, 23 Am.St.Rep. 772; Schlieff v. Bistline, 52 Idaho 353, 15 P.2d 726; Carver v. Ketchum, 53 Idaho 595, 26 P.2d 139.

A. H. Nielson, of Burley, and H. A. Baker, of Rupert, for respondent.

Limitation of conversion statute (Sec. 5-218) applies to all actions for wrongful taking of chattels of another. The character of right invaded or wrong committed, not the form of action, determines applicable statute. Sec. 5-218 I.C.A.; Common School District No. 18 v. Twin Falls Bank & Trust Co., 52 Idaho 200, 12 P.2d 774; Lowe v. Ozmun, 137 Cal. 257, 70 P. 87; Bell v. Bank of California, 153 Cal. 234, 94 P. 889; Union Tool Co. v. Farmers' & Merchants' Bank, 192 Cal. 40, 218 P. 424, 28 A.L.R. 1417; MacDonald v. Reich & Lievre, 100 Cal.App. 736, 281 P. 106.

Cause of action accrues when act of conversion committed. Havird v. Lung, 19 Idaho 790, 115 P. 930; Rose v. Dunk-Harbison Co., 7 Cal.App.2d 502, 46 P.2d 242; 65 C.J. 72; 34 Am.Jur. 109.

If acquisition of possession wrongful, statute of limitations then begins to run. Havird v. Lung, 19 Idaho 790, 115 P. 930; 34 Am.Jur. 108.

Mere verbal claim of ownership coupled with possession constitutes conversion and starts operation of statute of limitations. Hein v. Marcante, 57 Wyo. 81, 113 P.2d 940; Kee v. Becker, 54 Cal.App.2d 466, 129 P.2d 159; 65 C.J. 29, 31.

Budge, Chief Justice. Givens, Miller, and Hyatt, JJ., concur. Holden, J., sat at the hearing but did not participate in the decision of this case.

OPINION

Budge, Chief Justice.

This is an action sounding in tort in that it is alleged in the complaint that during the years 1943, 1944 and 1945 defendant-respondent, without the knowledge and consent of plaintiff-appellant, sold thirty-two head of cattle, alleged to have been owned by appellant, of the reasonable value of $ 100 per head, appropriated the money received for said cattle, and refused to pay appellant the money representing the value thereof.

After a careful study of the entire record and the briefs of respective counsel, in order that a clearer understanding of the facts appear, we have concluded to incorporate rather fully a statement of the pertinent facts.

It appears that William A. Davidson, deceased since 1937, and Mary Etta Davidson, his wife, resided on a ranch near Oakley, in Cassia County; that appellant, Edward E. Davidson, is the youngest and respondent, William A. Davidson, is the eldest of their several children. In 1921 respondent purchased the ranch upon which his parents and their family resided. The mother was still living on the place at the time of the trial. In 1925, when appellant was twelve or thirteen years old, he worked for a neighbor and earned $ 10 with which he purchased a heifer calf, which was later named Daisy. It is appellant's contention that the entire herd of cattle involved in this action was the increase, direct or remote, of this heifer calf which was brought to respondent's farm and fed from the products thereof. In 1931 and 1932 Daisy, then a cow of mature years, together with other livestock on the place including the livestock of respondent, was mortgaged by the parents. The mortgage was renewed from time to time, but was not paid. Subsequently, and during the year 1934, after appellant had attained his majority, the mortgage was foreclosed, but no record of the foreclosure proceedings can be found. The cattle covered by the mortgage were scattered, some on the range, and respondent was employed by the agent of the mortgagee to gather up the cattle in order that they might be sold at the foreclosure sale. Prior to gathering the cattle respondent had an agreement with the agent of the mortgagee that he could have either money or cattle as compensation for his services. The cow Daisy, together with other cattle covered by the mortgage, except two calves hereinafter referred to, were at the place of sale.

Much of the testimony is vague and lacks certainty. Whether respondent purchased the cow Daisy from the agent of the mortgagee at, or prior to, the sale is not made definitely certain by the testimony offered. However, we think it is clearly established that respondent purchased said cow in satisfaction of his claim for services rendered to the mortgagee and, at the same time, he was given a lump-jawed cow called Blockhead. The foreclosure sale was had and the cow Daisy was acquired by respondent and taken into his possession in July or August, 1934, twelve years prior to the filing of the present action March 30, 1946.

It further appears that a month prior to the foreclosure sale a calf called Sunshine from Daisy, and a calf called Brindle from another mortgaged cow, were at a neighbor's place and were not sold at the foreclosure sale. Respondent took possession of the two cows and the two calves, above mentioned, immediately following the sale. These cattle were kept on respondent's farm, fed from the products, branded with respondent's brand, in which work appellant assisted, were ranged on forest reserve acquired by respondent, who thereafter peaceably, openly, notoriously, and under claim of right claimed title to said cattle. He sold such of the livestock as he chose to sell from time to time, appellant making no complaint.

Some seventeen years before the trial, and before any of the cows were mortgaged, a milk account was opened with the Jerome Cooperative Creamery. C. W. Ross, manager of the creamery, testified the original transaction was with William A. Davidson, father of appellant and respondent; that milk was purchased and checks issued therefor in the name of appellant, and the account was never changed on the company's books. There is evidence that the milk checks were used by Mrs. Davidson in maintaining the home; that she "was allowed to use the milk checks for grocery bills." Respondent did not change the arrangement or method adopted by his father, but continued to permit the checks to be issued in appellant's name. There is no evidence that any of the checks went into the hands of appellant, or that he knew he was named as payee.

Following the death of the father in 1937 respondent, until about 1945, acted as head of the family. It appears there had accumulated on the farm a small herd of cattle claimed by respondent since 1934. In 1944 respondent sold two steers to Merrill Warr for $ 235.12, the check in payment therefor was made payable to appellant, and respondent endorsed and cashed it. Respondent testified the check was so made because of some difficulty he had with another brother, Perry, who threatened to expose respondent as an income tax violator. Perry, a witness for appellant, while he contradicted certain parts of respondent's testimony, did not deny that the check was issued in favor of appellant as a result of the threats he had made, or that he had made the threats.

Upon appellant's return from the service March 1, 1946, he claimed the cattle over which respondent had exercised exclusive control for a period of eight years, after deducting the four year period appellant served in the armed forces, and Perry not only claimed but actually sold hogs upon the place, and wanted to share in the cattle, whereupon respondent proceeded to sell all the cattle claimed by him [respondent]. There is evidence in the record tending to show that all members of the family had come to regard the cattle as a family herd.

The cause was tried by the court sitting with a jury, resulting in a verdict in favor of respondent, from which judgment this appeal is prosecuted.

At this point it might be well to refer to the complaint and amended answer for the purpose of determining the issues presented by the pleadings.

Appellant alleges in his complaint that he owned the cattle involved herein, which were reasonably worth $ 100.00 per head; that respondent sold said cattle during the years 1943, 1944 and 1945 without the knowledge or consent of appellant, retained and appropriated the money received therefor to his own use and that there is due and owing to him $ 3,200.00, together with interest. Respondent, in his...