Forbush v. San Diego Fruit & Produce Co.

• Decision Date: 04 May 1928
• Docket Number: 4791
• Citation: 266 P. 659,46 Idaho 231
• Court: Idaho Supreme Court
• Parties: CHRISTINA FORBUSH, Respondent, v. SAN DIEGO FRUIT & PRODUCE COMPANY, a Corporation, Appellant

266 P. 659

46 Idaho 231

CHRISTINA FORBUSH, Respondent, v. SAN DIEGO FRUIT & PRODUCE COMPANY, a Corporation, Appellant

No. 4791

Supreme Court of Idaho

May 4, 1928

CHATTEL MORTGAGES-ACTION FOR CONVERSION-RIGHT OF ACTION-EVIDENCE-BILL OF PARTICULARS-SUFFICIENCY-WHEN GRANTED.

1. Office of "bill of particulars" is to inform party demanding the same of causes of action or defenses to be relied on at trial not specifically set forth in complaint or answer, and not to compel adverse party to reveal his evidence.

2. Where party demanding a bill of particulars has presumably better knowledge than party from whom it is demanded, the latter will not be compelled to submit such a bill.

3. Where defendant in action for conversion of crop covered by a crop mortgage obviously had better knowledge of deliveries than plaintiff, failure to specify such deliveries in bill of particulars pursuant to demand therefor by defendant held not to have resulted in prejudice, even though defendant was entitled to information.

4. Crop mortgage executed at time mortgagor was unmarried held not invalid because of fact that it was not signed by wife, since rights created by mortgage at date of execution could not be destroyed by subsequent marriage of mortgagor.

5. C S., sec. 6949, providing that only one action can be brought for the enforcement of rights secured by mortgage, held not to prevent mortgagee from bringing action against a third party for conversion of crop covered by a crop mortgage, said section having no application unless action directly affects rights of mortgagor under mortgage contract, and by disposing of mortgaged property mortgagor effectively deprived himself of all interest in property.

6. C S., sec. 6949, providing for only one action for enforcement of rights secured by mortgage, being designed to prevent multiplicity of actions to divest mortgagor of title following default by reason of fact that, under section 6360 chattel mortgage gives mortgagee only a lien on property, has no application unless action directly affects rights of mortgagor under mortgage contract.

7. As between mortgagor and his grantee, after disposal of property covered by mortgage, the former is estopped to question completeness of his own title.

8. Under common law, a chattel mortgagee had both title to and possession of mortgaged goods with right to maintain an action in conversion in case property was taken from his possession.

9. Common-law right of action for conversion of mortgaged property cannot be abridged except by an express statutory enactment.

10. In action for conversion of crop covered by a crop mortgage evidence held sufficient to sustain finding that there had been a conversion of property, as alleged.

11. Any unauthorized act which deprives an owner of his property permanently or for an indefinite time is a "conversion."

12. If a third person, without consent of mortgagee, appropriates or destroys mortgaged property, he is guilty of conversion.

13. Crop mortgagee suing for conversion of crop thereunder has burden of proving property in such crop, and also right to immediate possession at time of conversion.

14. Where purchaser of potatoes covered by crop mortgage after demand of mortgagee for possession refused to surrender them it asserted unqualified ownership and thereby became charged with constructive notice of mortgage, and hence evidence dealing with status as a commission merchant was properly excluded without regard to whether recorded mortgage, under C. S., sec. 6375, constituted notice to commission merchant.

15. Generally, an agent, however innocent, who wrongfully interferes with property of another is liable in conversion.

16. Under C. S., sec. 6373, relative to mortgages on growing crops, mortgagee suing for conversion of crops covered by crop mortgage has burden of showing that crops on which a lien was claimed were in fact sown by mortgagor or caused to be sown by him.

17. In action by crop mortgagee for conversion of crops covered by mortgage, evidence held sufficient to sustain finding that potatoes on which lien was claimed were raised by or under direction of mortgagor, and were in fact covered by mortgage.

18. Mere fact that delivery of potatoes by one other than mortgagor in crop mortgage does not establish that crops were not raised by mortgagor, where there is evidence to effect that they were.

19. If potatoes were raised by or under direction of mortgagor in crop mortgage covering such potatoes, lien of mortgage would continue, even though they passed into the hands of subvendee before delivery to purchaser.

20. Lien of crop mortgage on potatoes raised by or under direction of mortgagor continues though mortgaged crops have been tortiously removed and disposed of without consent of either mortgagor or mortgagee.

21. Crop mortgagee did not lose right to sue for conversion of crops covered merely because he took over part of the property mortgaged at request of mortgagor and disposed of it without foreclosure, where property so taken was in part worthless and value of remainder was not shown.

APPEAL from the District Court of the Ninth Judicial District, for Bonneville County. Hon. George W. Edgington, Judge.

Action for conversion of a crop covered by a crop mortgage. Judgment for the plaintiff. Affirmed.

Judgment affirmed. Costs to respondent. Petition for rehearing denied.

C. E. Crowley, for Appellant.

To constitute a conversion of mortgaged crops by a produce dealer, not a party to the mortgage, it must be alleged and proved that,--

A. The mortgagor sold the crops. (C. S., sec. 6386.)

B. That the dealer actually bought the crops and paid or agreed to pay the price therefor. (C. S., sec. 5673.)

There must be intention on the part of defendant to deprive the owner of the property, and to take to himself the property in the goods. (Bowers, Law of Conversion, p. 2, sec. 2.)

Where plaintiff alleges that 121,000 pounds of potatoes were sold, transferred and delivered to a defendant corporation, without stating who sold, or transferred or delivered same, or to whom said deliveries were made, and the defendant demurs on the grounds of uncertainty and ambiguity, and demands a bill of particulars, it is entitled to such bill (C. S., sec. 6709), and where a bill of particulars is furnished by the plaintiff without court order, she admits that defendant is entitled to same, and it is as binding upon plaintiff as though ordered by the court. (American Copper, Brass & Iron Works v. Galland-Burke Brewing & Malting Co., 30 Wash. 178, 70 P. 236.)

Where the bill of particulars furnished is purposely evasive, the defendant may wait until time of trial to raise objections thereto, and the court should reject evidence offered in variance therewith. (Knop v. National Fire Ins. Co., 101 Mich. 359, 59 N.W. 653; Purdy v. Warden, 18 Wend. (N. Y.) 671.)

The mortgagee must prove his right of property and of possession in the property at the time of conversion, and must bring an action to foreclose, making party buying a party defendant. (Bank of Roberts v. Olaveson, 38 Idaho 223, 221 P. 560.)

There can be but one action for the recovery of any debt or the enforcement of any right secured by mortgage upon personal property. (C. S., sec. 6949.)

Mortgages in Idaho are not conveyances. (C. S., sec. 6952.)

One action for recovery of possession or conversion of mortgage chattels and another to foreclose cannot be maintained, and in case part of mortgaged crops are sold, the proper procedure is to foreclose the mortgage, sell the part not disposed of and then proceed against the dealers all of which can be done in one action. (Cederholm v. Loofborrow, 2 Idaho 191, 9 P. 641; Adams v. Caldwell Milling Co., 33 Idaho 677, 197 P. 723; Berg v. Carey, 40 Idaho 278, 232 P. 904.)

James S. Byers, for Respondent.

Where the mortgagor has consented that the mortgagee may take part of the mortgaged property and pay the mortgage debt in so far as it will, the mortgage is not extinguished nor satisfied. (Workingmen's Building etc. Assn. v. Epstin, 73 S.C. 575, 53 S.E. 952.)

An act done to preserve and protect the property in order that it may remain subject to the lien, and not in antagonism thereto, is not a wrongful conversion within the meaning of this section. "We are of the opinion that upon either ground, the case fails to show a wrongful conversion." (Summerville v. Stockton Milling Co., 142 Cal. 529, 76 P. 243.)

Where it is apparent that property is taken merely to protect the security, there is no conversion and the mortgage lien is not extinguished. (11 C. J. 686; Beadleston v. Morton, 16 Misc. 72, 37 N.Y.S. 665.)

"A chattel mortgagee can recover the value of the property on its conversion not exceeding the amount of the mortgage, not being bound to foreclose." (Buffalo Pitts Co. v. Stringfellow-Hume Hardware Co., 61 Tex. Civ. App. 49, 129 S.W. 1161.)

"The mortgagee of personal property is not required to exhaust its remaining security before it is entitled to a judgment against a trespasser for the conversion of a part of the mortgaged property." (Barron v. San Angelo Nat. Bank (Tex.), 138 S.W. 142.)

When mortgaged personal property is converted by a third person, the mortgagee has the right of action against the wrongdoer for his damages measured by the value of the property, if it does not exceed the amount of the secured debt. (S.E. Stewart & Bros. v. Harris, Cortner & Co., 6 Ala. App. 518, 60 So. 445; Ziegler v. Ilfeld, 52 Colo. 275, Ann. Cas. 1913D, 583, 122 P. 56; Bausch v. Brown (Tex. Civ. App.), 152 S.W. 683; Houssels v. Coe & Hampton (Tex.), 159 S.W. 864.)

Where the mortgagee has the right to take possession of chattels mortgaged, he may maintain an action of claim and...