Day v. Smith, 1815

CourtUnited States State Supreme Court of Wyoming
Writing for the CourtBLUME, Justice.
Citation46 Wyo. 515,30 P.2d 786
PartiesDAY v. SMITH, ET AL
Decision Date13 March 1934
Docket Number1815

30 P.2d 786

46 Wyo. 515

DAY
v.
SMITH, ET AL

No. 1815

Supreme Court of Wyoming

March 13, 1934


ERROR to District Court, Natrona County; C. D. MURANE, Judge.

Action by H. A. Day, plaintiff, against C. A. Smith and others, as defendants, for converting certain property and rights. A demurrer filed to the petition was sustained, and plaintiff elected to stand upon his petition. From a judgment of dismissal, plaintiff brings error.

Reversed and Remanded.

For the plaintiff in error, there was a brief by C. G. Cypreansen and W. B. Holliday, both of Casper, and oral argument by Mr. Holliday.

Defendant's demurred to plaintiff's amended petition. The demurrer was sustained and plaintiff having elected to stand on his amended petition without pleading further, there was a judgment of dismissal with prejudice, upon the ground that said petition did not state facts sufficient to constitute a cause of action. Plaintiff prosecutes error. The petition alleges facts showing a right in the plaintiff, a duty connected with such right resting on the defendant, a breach of such duty by the defendant with a claim of injury. This, we believe, states a cause of action. Bancroft's Code Pleading, Vol. 1, p. 170. The allegations of the pleading must, for the purpose of testing the demurrer, be taken as true. The petition alleges an invasion of plaintiff's rights by the taking and appropriating of plaintiff's property described in the petition. It is alleged that plaintiff was damaged in the sum of $ 10,000.00 by the unlawful acts of defendant. It was submitted that the judgment of the trial court should be reversed.

For the defendants in error, there was a brief by Durham and Bacheller of Casper, and oral argument by E. Paul Bachellor.

The language of the petition indicates that the action is one in conversion of a leasehold right to certain fixtures described in the petition. It was alleged that plaintiff claimed a verbal lease upon the property from day to day, and that the rental was paid to and including the 15th day of May, 1928, but not subsequent thereto. It is not alleged that possession taken by defendant was forcible, hence no right of repossession would exist in favor of plaintiff. Casper Wyoming Theatres Company, et al v. Rex Investment Company, 37 Wyo. 357. Nor could a claim for damage exist. It is shown by the brief of plaintiff in error, at least by inference, that plaintiff became mentally incompetent subsequent to May 15, 1928, and this was the reason why he ceased the restaurant business. A written lease may be the subject of conversion. Bowers on Conversion, Section 23. The leasehold itself, as such, is not subject to conversion. Id. Secs. 25, 26. Conversion is an unauthorized taking of chattels out of the possession of the owner, an assumption of ownership or mis-use or disposal of chattels so as to materially alter them or place them beyond the use of the owner, or a wrongful detention of them after demand from the owner for possession. Bowers on Conversion, Sec. 257. The record is incomplete and defendant in error is submitting a suggestion of a diminution of the record. A dismissal with prejudice as against one of several joint tortfeasors is a dismissal as to all. 23 R. C. L. 405; 53 A. L. R. 1420. We are familiar with the rule followed in Natrona Power Company v. Clark, 31 Wyo. 284, but believe it has no application to the facts as presented by the record herein. 50 A. L. R. 1058.

C. G. Cypreansen and W. B. Holliday in reply.

Rights extending beyond the rights in or to chattels, are subject to conversion, as evolving from the very definition of conversion. 26 R. C. L. 1098. All objects and rights capable of ownership, except freehold estates in land are subject to conversion. 22 R. C. L. 63. A covenant or agreement not to sue one of several joint tort-feasors, made on a sufficient consideration, is not a technical release of the damages sustained. 23 R. C. L. 408.

BLUME, Justice. KIMBALL, Ch. J., and RINER, J., concur.

OPINION [30 P.2d 787]

[46 Wyo. 518] BLUME, Justice.

This is a case brought by H. A. Day, plaintiff, against C. A. Smith and others, as defendants, for converting certain property and rights. A demurrer was filed to the amended petition and was sustained by the court. The plaintiff elected to stand upon his amended petition, a judgment was thereupon entered [46 Wyo. 519] dismissing the case, and from that judgment the plaintiff has appealed.

The amended petition alleges in substance the following: On or about May 15, 1928, plaintiff was the owner and in possession of a certain restaurant business at Casper, Wyoming, and of the personal property used in connection therewith; that the business was a going concern and was operated profitably; that it and the personal property and good will in connection therewith were of the reasonable value of ten thousand dollars; that the business was conducted on certain premises at Casper under a verbal lease, under which plaintiff was given the right to possess and occupy the premises indefinitely "and conditioned only that he pay the defendant C. A. Smith for the use and occupancy thereof the sum of two dollars daily;" that plaintiff paid this sum each day and (as may be gathered from the amended petition) up to and including the 15th day of May, 1928; that no person ever has terminated the plaintiff's lease; that some time after May 15, 1928, the exact date being unknown, the defendant C. A. Smith and his associates unlawfully appropriated the personal property and business aforesaid, and disposed of it for their own use and benefit; that by reason thereof plaintiff was damaged in the sum of ten thousand dollars, for which judgment is asked.

1. The first point to be determined is as to whether or not plaintiff is entitled to any damages by reason of the destruction of his business, resulting from the fact that the defendants took possession of the leasehold and the personal property mentioned. It may be said in that connection that it was admitted in open court on the oral argument herein that the plaintiff, on or about May 15, 1928, became insane; that he left the premises; that he was adjudged insane; that he was sent to the insane asylum in this state and that [46 Wyo. 520] he was thereafter discharged and released therefrom. Counsel for the plaintiff argue that the defendants had no right to take possession of the premises without giving notice to the plaintiff or his guardian that the lease would be terminated. Counsel for Smith, the defendant in error, argue that, in view of the fact that the plaintiff abandoned the premises and failed, after May 15, 1928, to pay the rent reserved in the lease, the defendant in error herein had the right to take possession of the premises without any notice whatever. It is agreed herein that possession was taken peaceably.

At common law the landlord had the right to re-enter and resume and retake possession without any process or legal proceedings upon the expiration of the tenant's right to occupy the premises, or upon the termination of the tenancy, or upon a forfeiture of the lease or disavowal of its terms, at least in all cases where he was able to obtain possession peaceably. 36 C. J. 597. He had the same right upon the surrender and abandonment of the lease by the tenant. 36 C. J. 598. [30 P.2d 788] If, however, we may take into consideration the fact that the plaintiff became insane, he cannot, strictly speaking, be said to have abandoned the premises, since abandonment, ordinarily at least, requires an intention to abandon (1 C. J. 7), and such intention cannot be attributed to an insane person. Furthermore, the mere non-payment of rent cannot, ordinarily at least, be relied upon as furnishing the respondent the right to take possession of the premises without notice. It is said in 36 C. J. 599:

"In the absence of a provision to such effect in the lease, non-payment of rent does not as a general rule work a forfeiture and hence confers no right of re-entry. Under an express provision in the lease, however, the landlord may re-enter for [46 Wyo. 521] non-payment of rent provided a sufficient demand for payment has been made before entry, unless the lease expressly dispenses with notice thereof."

The lease in this case was oral. It does not appear that under it the landlord was given the right to re-enter for non-payment of rent, nor does it appear that a demand for the payment of the rent was made prior to entry. It is true that it appears from the amended petition that the plaintiff's right...

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8 practice notes
  • Lakota Oil & Gas Co. v. City of Casper, 2184
    • United States
    • United States State Supreme Court of Wyoming
    • September 19, 1941
    ...(Cal.) 46 P.2d 175. The record shows conclusively that the city did not exercise its option prior to August 29, 1933. Day v. Smith, 46 Wyo. 515; Payne v. Shelton (Ind.) 134 N.E. 918. The contract of August 29, 1933, is void in any event. It is in conflict with Article I, Section 32 of the S......
  • Bjork v. Chrysler Corp., No. 84-131
    • United States
    • United States State Supreme Court of Wyoming
    • June 27, 1985
    ...tortfeasor operates as a discharge of both, but a Page 152 covenant not to sue one will not discharge the other." Accord Day v. Smith, 46 Wyo. 515, 30 P.2d 786 A release of one was said to discharge all joint tortfeasors for the reason that, even though the parties may not have so intended,......
  • State ex rel. Moore v. Van Tassell Real Estate & Live Stock Company, 2037
    • United States
    • United States State Supreme Court of Wyoming
    • May 25, 1938
    ...J. 582; Nampa v. Welsh, 15 P.2d 617; Coon v. Biscailuz, 36 P.2d 430; State v. Ashley, 42 P.2d 225; Bank v. Gray, 24 Wyo. 13; Day v. Smith, 46 Wyo. 515; State ex rel. Cross v. Board of Land Commissioners, 58 P.2d 423. A reviewing court will not disturb a judgment of the trial court if same i......
  • Haderlie v. Sondgeroth, No. 91-114
    • United States
    • United States State Supreme Court of Wyoming
    • December 15, 1993
    ...policy that a plaintiff is entitled to compensation from all wrongdoers, but with one satisfaction for his damages. See Day v. Smith, 46 Wyo. 515, 30 P.2d 786 (1934); Natrona Power, 31 Wyo. 284, 225 P. 586; see also Kirby Bldg. Systems v. Mineral Explorations Co., 704 P.2d 1266 (Wyo.1985). ......
  • Request a trial to view additional results
8 cases
  • Lakota Oil & Gas Co. v. City of Casper, 2184
    • United States
    • United States State Supreme Court of Wyoming
    • September 19, 1941
    ...(Cal.) 46 P.2d 175. The record shows conclusively that the city did not exercise its option prior to August 29, 1933. Day v. Smith, 46 Wyo. 515; Payne v. Shelton (Ind.) 134 N.E. 918. The contract of August 29, 1933, is void in any event. It is in conflict with Article I, Section 32 of the S......
  • Bjork v. Chrysler Corp., No. 84-131
    • United States
    • United States State Supreme Court of Wyoming
    • June 27, 1985
    ...tortfeasor operates as a discharge of both, but a Page 152 covenant not to sue one will not discharge the other." Accord Day v. Smith, 46 Wyo. 515, 30 P.2d 786 A release of one was said to discharge all joint tortfeasors for the reason that, even though the parties may not have so intended,......
  • State ex rel. Moore v. Van Tassell Real Estate & Live Stock Company, 2037
    • United States
    • United States State Supreme Court of Wyoming
    • May 25, 1938
    ...J. 582; Nampa v. Welsh, 15 P.2d 617; Coon v. Biscailuz, 36 P.2d 430; State v. Ashley, 42 P.2d 225; Bank v. Gray, 24 Wyo. 13; Day v. Smith, 46 Wyo. 515; State ex rel. Cross v. Board of Land Commissioners, 58 P.2d 423. A reviewing court will not disturb a judgment of the trial court if same i......
  • Haderlie v. Sondgeroth, No. 91-114
    • United States
    • United States State Supreme Court of Wyoming
    • December 15, 1993
    ...policy that a plaintiff is entitled to compensation from all wrongdoers, but with one satisfaction for his damages. See Day v. Smith, 46 Wyo. 515, 30 P.2d 786 (1934); Natrona Power, 31 Wyo. 284, 225 P. 586; see also Kirby Bldg. Systems v. Mineral Explorations Co., 704 P.2d 1266 (Wyo.1985). ......
  • Request a trial to view additional results

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