Didriksen v. Broadview Hardware Co.

• Decision Date: 27 October 1920
• Docket Number: 4193.
• Citation: 193 P. 63,58 Mont. 421
• Parties: DIDRIKSEN v. BROADVIEW HARDWARE CO. ET AL.
• Court: Montana Supreme Court

193 P. 63

58 Mont. 421

DIDRIKSEN v. BROADVIEW HARDWARE CO. ET AL.

No. 4193.

Supreme Court of Montana

October 27, 1920

Appeal from District Court, Yellowstone County; Charles A. Taylor Judge.

Action by C. A. Didriksen against the Broadview Hardware Company and another. Judgment for plaintiff, and defendants appeal. Affirmed.

George C. Crago, of Seattle, Wash., and F. B. Reynolds, of Billings for appellants.

Dillavou & Moore, of Billings, for respondent.

HURLY J.

This is an action for damages in conversion, in which the plaintiff had judgment, from which defendants appeal. The appeal presents the single question as to whether the complaint states a cause of action. The material portions of the complaint paraphrased, are as follows: That the defendant Broadview Hardware Company is a Montana corporation; that on or about November 1, 1916, the "plaintiff was the owner of and lawfully possessed of" certain personal property the value of which is alleged; that on or about the 1st day of November, 1916, the defendant corporation procured and employed the defendant Harrison to take and seize said goods, and that defendants willfully, wrongfully, and unlawfully took the same from the possession of one Meeker, agent of the plaintiff, with whom he had left said goods for safe-keeping "until his return to Broadview, Mont."; that the defendants sold the same, and held the proceeds thereof for their own use and benefit, and thereby wrongfully converted said goods to their own use and benefit, so that the same have become wholly lost to the plaintiff, to his damage; that on or about the 20th day of January, 1917, "plaintiff returned to Broadview, Mont., met his said agent, and became entitled to the immediate possession of said goods," then for the first time learning of defendants' wrongful acts in seizing and disposing of said property. There follows an allegation of demand for return of the goods, and refusal on the part of the defendants, together with an appropriate prayer for judgment. There was no demurrer, and, so far as appears, the sufficiency of the complaint was not attached in the trial court. The answer admits that the plaintiff is a corporation, and denies all other allegations of the complaint.

Here the plaintiff alleged his ownership of the property, and that he was lawfully possessed of the same. Certainly it is an inevitable inference from such statement that plaintiff (owner) "lawfully possessed" was then entitled to such possession.

In Babcock v. Caldwell, 22 Mont. 460, 56 P. 1081, this court said:

"Defendant attacks the complaint upon the ground that it fails to state a cause of action by reason of the omission therefrom of an allegation that the plaintiff was the owner and entitled to possession at the commencement of the action. The complaint avers, among other things, that 'on the 24th day of September, 1895, the plaintiff was the owner and in possession of' the property, and that on said day the defendant took possession of the same, and converted it to his own use. It is not necessary, in a case of this kind, where damages only are recoverable, that plaintiff's ownership and right of possession, or either, should have existed when the action was begun. * * * In an action to recover the possession of chattels, the rule is different. The complaint is sufficient."

Later in the complaint plaintiff states the fact of his return to the state, and that he then became entitled to the immediate possession. This is only explanatory of the agency or custody held by Meeker, and is fairly inferable that the statement was placed in the complaint in explanation also of the failure to bring action...