Ettien v. Drum

• Decision Date: 02 February 1907
• Parties: ETTIEN v. DRUM.
• Court: Montana Supreme Court

88 P. 659

35 Mont. 81

ETTIEN v. DRUM.

Supreme Court of Montana

February 2, 1907

Appeal from District Court, Yellowstone County; Chas. H. Loud Judge.

Action by William Ettien against H. B. Drum. From an order setting aside a verdict for plaintiff and granting a new trial plaintiff appeals. Affirmed.

W. M Johnston, for appellant.

Fred H Hathhorn and Harry A. Groves, for respondent.

SMITH J.

This is an action of claim and delivery, wherein the plaintiff seeks to recover from defendant the possession of 42 head of stock cattle, of the value of $33 each, two calves, of the value of $20 each, the increase of said stock cattle, number unknown, of the value of $20 each, and the sum of $200 as damages for wrongfully withholding said animals from the possession of the plaintiff, after demand. This is the second time the case has been before this court. See Ettien v. Drum, 32 Mont. 311, 80 P. 369. In his complaint the plaintiff sets forth that on or about October 1, 1900, at Fergus county, Mont., William Deaton and Austin Warr unlawfully and wrongfully took said stock cattle from his possession, and that on or about December 11, 1900, the cattle came into possession of the defendant; that they have since increased in number; that defendant vented plaintiff's brand and placed his own brand on the cattle, and, upon demand, refused to deliver the animals to plaintiff. Defendant by answer alleges on information and belief that at the time he purchased the cattle from Deaton and Warr they were the owners and in possession of the cattle; that they sold and delivered the same to him for a good and valuable consideration. By amended reply, plaintiff avers "that on July 24, 1900, one W. D. Deaton was the owner of all cattle in Montana which were branded with a pitchfork brand, so-called, on the left shoulder; that on July 24, 1900, the said Deaton sold all of said cattle, together with said brand and the right to use the same, to this plaintiff at and for the agreed price of $33 per head; that at that time the said Deaton and this plaintiff entered into an oral agreement for the sale and delivery of said cattle, the terms of which agreement were as follows, to wit: There were to be two deliveries of said cattle at Utica, Montana, and the first delivery was to be on or about August 5, 1900, and the second delivery on or about August 25, 1900; that said cattle when delivered should not be tally marked nor their brands vented, and all of said cattle were to be again turned on the common range after said second delivery; that the plaintiff was to pay thirty-three dollars per head for said cattle when delivered and counted out at said two deliveries; and that plaintiff, upon said second delivery being made and paid for, should become the owner of said brand and of the right to use the same; that nothing was said by or between said Deaton and plaintiff at that time as to who would be the owner of any cattle branded as aforesaid which might be left on the range and not included in either of said deliveries. Plaintiff further alleges that there was then, and ever since then has been, a well-known and general custom and usage among cattlemen in Fergus county, Montana, where said Deaton and plaintiff then resided and where said sale was made, as well as in the whole state of Montana, that under an agreement for the sale of a whole herd of cattle and their brands, containing the same terms as to delivery, payment, brands, and all other conditions as are and were contained in said agreement between said Deaton and plaintiff, the purchaser of said cattle and brand becomes the owner of all said cattle, if any, left on the range and not included in any of the specified deliveries of said cattle, without the payment of any sum of money other than the agreed price per head for the cattle actually delivered; that plaintiff is informed and believes, and therefore alleges, that the said Deaton, because of his long experience as a cattleman, was then well informed as to said general custom and usage; and that said agreement was made because of said custom and usage, which was by tacit consent made a part of said agreement for the purchase and sale of said cattle. Plaintiff alleges that on or about August 5, 1900, the first delivery of said cattle was made at Utica, Montana, under said agreement, at which time 607 head of said cattle were counted out and delivered to plaintiff by said Deaton, and which were then paid for by plaintiff at the rate of thirty-three dollars per head; that on or about August 6, 1900, said Deaton delivered to plaintiff a bill of sale of all of said pitchfork cattle, together with their said brand and the right to use the same; and that on or about September 1, 1900, said Deaton made the second and last delivery of said cattle, under said agreement, at Utica, Montana, at which time he delivered and counted out to plaintiff ninety-eight head of said pitchfork cattle, and plaintiff then paid to said Deaton the sum of thirty-three dollars per head for the cattle so delivered. Plaintiff alleges that under said agreement and said custom and usage he, on September 1, 1900, became and was the owner of all of said cattle branded with the pitchfork brand on the left shoulder, together with said brand and the right to use the same, which said cattle included the cattle claimed by defendant and which are described in plaintiff's complaint and are involved in this action; that said Deaton at that time ceased to have any interest of any kind in or to any of said cattle; that said cattle were then turned on the common range without being tally marked or without their brands being vented, and without any distinguishing mark whatever being put upon them or any or either of them, and that any pretended sale of said cattle, or any of them, by said Deaton or Austin Warr to the defendant was and is illegal and void." On the former appeal this court held that the custom of cattlemen above pleaded was inconsistent with section 4491 of the Civil Code, and could not, therefore, be relied upon by the plaintiff.

A composite review of the testimony on both sides of the case discloses: That in the summer of 1900 the plaintiff purchased of W. D. Deaton 760 head of stock cattle, more or less, and received a bill of sale therefor on August 7th of that year, which instrument is as follows:

"Know all men by these presents, that I, W. D. Deaton, of Fergus county, state of Montana, the party of the first part, for and in consideration of the sum of twenty-five thousand and eighty dollars, lawful money of the United States, to me in

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