Emery Consol. Mining Co. v. Erickson

• Decision Date: 10 July 1922
• Docket Number: 4838.
• Citation: 208 P. 935,64 Mont. 190
• Parties: EMERY CONSOL. MINING CO. v. ERICKSON ET AL.
• Court: Montana Supreme Court

208 P. 935

64 Mont. 190

EMERY CONSOL. MINING CO. v. ERICKSON ET AL.

No. 4838.

Supreme Court of Montana

July 10, 1922

Appeal from District Court, Powell County; J. J. Lynch, Judge.

Action by the Emery Consolidated Mining Company against Arthur Erickson and another. From judgment for defendants and order denying new trial, plaintiff appeals. Judgment and order reversed.

J. H Duffy, of Anaconda, and S. P. Wilson, of Deer Lodge, for appellant.

Charles E. O'Neill and Clarence Hanley, both of Butte, for respondents.

FARR J.

This is an action in claim and delivery to recover certain scrap iron and machinery parts. The case was tried to a jury, which found a verdict for the defendants. Plaintiff appeals from the judgment entered on the verdict and from the order denying its motion for a new trial.

Plaintiff is a mining company owning certain mining claims about eight miles east of Deer Lodge, in Powell county, Mont., together with a mill and mining machinery located thereon. The scrap iron and machinery parts described in the complaint are a portion of the machinery which was contained in plaintiff's mill upon its mining property and had been installed in the mill from about 1907 until the latter part of 1918, when it was hauled by the defendant Arthur Erickson at the instance of one Rosenblatt, to Deer Lodge and was there piled in an alley back of the Old City Hotel. It was the contention of defendants at the trial that the plaintiff had, prior to the hauling by Erickson, made a sale of all the material hauled by him to Rosenblatt, thereby parting with its title which otherwise was unquestionably established in the plaintiff. The plaintiff contended that it had never sold or otherwise parted with its title to the property involved in this particular suit, although admitting that Rosenblatt had obtained some scrap iron from the mining property, which he had shipped out of the state. It is conceded that Erickson, beginning about November 1, 1918, at the behest of Rosenblatt, hauled the property in question from plaintiff's mill to Deer Lodge; that upon July 15 following, he purchased the property at sheriff's sale under execution issued on a judgment in a suit brought by him against Rosenblatt, it being sold as Rosenblatt's property; that soon after he purchased it, he sold it to the defendant Rothman, who took possession of it and started moving it from where it had been stored in the alley to his own home, and, while moving it, it was taken by the sheriff pursuant to the claim and delivery proceedings in this action.

The court instructed the jury to return a verdict in favor of the defendant Erickson upon the theory that prior to the commencement of this action Erickson had parted with the possession of the property, and whether or not his possession had ever been rightful, or he had any right to sell it to Rothman, was an immaterial question in the case; the property being entirely in the possession of Rothman at the time of the commencement of the action. Plaintiff acquiesced in this ruling.

Error is first assigned to the order overruling the plaintiff's motion for a directed verdict. The facts may be summarized to the effect that the property described in the complaint confessedly is the machinery and broken parts which, prior to being taken possession of by defendant Erickson, was in the mill of plaintiff and was its property, unless it had been sold to A. Rosenblatt, and there is no room for a contention that plaintiff had parted with its title in any other manner and likewise there is no room for contention that Rothman had a scintilla of title otherwise than under the theory of a sale to Rosenblatt. Whether there had been a sale to Rosenblatt was, therefore, the only question for determination by the trial court or jury. And the first question for this court's determination is whether there was sufficient competent evidence to warrant the submission of that question to the jury. If there was not, then the motion should have been sustained.

The defendant Arthur Erickson testified that at the request of Rosenblatt he hauled certain junk, scrap iron, and old pipe from the plaintiff's plant and property--a little over 60 tons--and that a little over 32 tons of it was loaded onto a car on the Northern Pacific tracks at the town of Deer Lodge. He testified that before hauling this material, he talked with Mr. Joseph Whitworth, who was then the president of the plaintiff corporation, and that he asked Whitworth "if Mr. Rosenblatt bought this stuff, and whether it was all right for me to haul it or not. * * * What he did tell me was that it was all right, that Rosenblatt had paid for it, and to go right ahead and haul it if he wanted me to. I didn't ask him how much machinery Rosenblatt had bought. I didn't ask him how much the company had sold to Rosenblatt." Whitworth, on rebuttal, testified that he had no recollection of any conversation to that effect; that when Erickson was hauling the first car, he (Whitworth) asked Erickson who authorized him to haul the stuff, to which Erickson replied, "Mr. Rosenblatt." Whitworth further testified that--

"Rosenblatt did not buy this stuff; he was to take me up, and I was to show him what we had, but we never went up; he simply went up and took it out for himself (Mr. Rosenblatt) without any authority. I didn't tell Mr. Erickson anything about hauling more of it. When he was hauling that first car, he was hauling some rails, and I told him he must not haul those rails or any pipe, but I wanted it left there."

In support of defendants' contention that there had been a sale of the property from the plaintiff mining company to Rosenblatt, there was introduced in evidence the record of an action in the justice court of Cottonwood township, Powell county, wherein this appellant was plaintiff and A Rosenblatt was defendant. The complaint in that action alleged that plaintiff had sold to A. Rosenblatt 62,100 pounds of scrap...