Gallick v. Bordeaux

• Decision Date: 26 April 1899
• Citation: 56 P. 961,22 Mont. 470
• Parties: GALLICK v. BORDEAUX et al.
• Court: Montana Supreme Court

56 P. 961

22 Mont. 470

GALLICK v. BORDEAUX et al.

Supreme Court of Montana

April 26, 1899

Appeal from district court, Silverbow county; William O. Speer Judge.

Action by Emanuel Gallick against Thomas J. Bordeaux and others. From a judgment for defendants, and an order denying a new trial, plaintiff appeals. Reversed.

Action in claim and delivery to recover the possession of a stock of cigars, tobacco, and liquors, and a lot of saloon furniture with damages to plaintiff's business by the wrongful seizure and detention of the property. The complaint alleges generally, ownership and right of possession in plaintiff, a wrongful seizure by defendant Thomas J. Bordeaux on May 15 1895, a detention of the property since that date, and then continues: "That at the time of the seizure the plaintiff was engaged in running a saloon business in the city of Butte, Silverbow county; that the property was his stock in trade; that by the wrongful detention by the defendant Thomas J. Bordeaux plaintiff's business has been damaged to the amount of $1,000; that at the time of the seizure the defendant Thomas J. Bordeaux was a duly qualified and acting constable in Silverbow county; that he seized the property as the property of one Bordoni, under a writ of execution out of the justice's court of R. F. Turner, a justice of the peace of Silverbow county, in a cause wherein F. H. Cooney was plaintiff and F. A. Bordoni was defendant; that Bordoni had neither right, title, nor interest in the property; that the defendant Thomas J. Bordeaux, at the time of entering upon his duties as constable as aforesaid, made and filed his official bond, conditioned as provided by law for the faithful performance of his duties; that the other defendants are his sureties upon his official bond; and that his seizure of the property, as alleged, was a breach of his official duty." The value of the property is alleged at $860.02. Judgment is demanded for the return of the property, or its value, and for $1,000 damages. The answer denies, generally, the ownership and right of possession in plaintiff and damage to his business, admits that the property was worth $176, alleges that the property belonged to Bordoni, and then justifies the seizure under a writ of execution in the case of Cooney against Bordoni upon a judgment in favor of plaintiff therein. It was claimed by plaintiff at the trial that on May 2, 1895, he had purchased of Bordoni the goods and saloon furniture therefore owned by the latter at a place in Butte known as the "Sonoma Wine Cellar," paying in full for them by advancing $180 to pay off a claim again Bordoni in favor of one Brennen, who had caused the property to be attached, and that after taking possession he had continued the business at the same place, making additions to the stock from time to time, as necessity required. It was also claimed that Bordoni was left in charge to run the business as plaintiff's agent. The trial was had to a jury, which returned a verdict for defendants. From the judgment rendered thereon, and an order overruling his motion for a new trial, plaintiff appeals.

John W. Cotler, for appellant.

C. P. Drennan, for respondents.

BRANTLY C.J. (after stating the facts).

1. Plaintiff insists that the court erred in permitting the defendants to introduce proof tending to show that the plaintiff's title to the property in controversy was founded in fraud, in the absence of a special allegation in their answer setting up the facts. The defendant Thomas J. Bordeaux was allowed, over the objection of plaintiff, to detail a conversation, had with Bordoni at the time of the levy, in which Bordoni told him, substantially, that he was in debt to the plaintiff about $400, besides debts he owed to other persons; that, if his creditors would let him alone, he would pay them; that he had put the business in Mr. Gallick's name for protection; that the business was in fact his, but that the levy of the execution "settled it." Other witnesses also testified to similar statements by Bordoni. One of these, Del Grosso, who worked as bartender in the saloon after the sale to Gallick, testified to a conversation between Bordoni and Gallick, just after the time of the sale on May 2d, in which Gallick said to Bordoni: "If any one asks you to whom this business belongs, just tell them it belongs to me. Nobody will bother you from this on. You go along, and attend to your business." Then, turning to witness, he said: "You go along, and attend to your business. You are working for Bordoni." This witness testified, further, that he worked for Bordoni, and was paid by him. The evidence of declarations by Bordoni was further objected to on the ground that declarations made by him after the sale to Gallick were not competent for any purpose, as against Gallick. This proof was all allowed, on the theory that it was admissible under the denials in the answer without special allegations of fraud. We think the evidence admissible, in so far as it tended to show that the arrangement between the plaintiff and Bordoni was fraudulent. It is the general rule that, where a party to an action relied upon fraud, he must plead it. In replevin, however, it seems to be the rule, supported by the great weight of authority, that where the complaint contains only general allegations of title and right of possession, without setting forth the origin of the title or the facts upon which it is based, the defendant may deny these allegations generally, and upon the trial give proof of any fact tending to destroy or rebut plaintiff's claim. Mr. Phillips, in his work on code Pleading, states the rule thus: "A general denial puts in issue all the essential averments of the complaint, puts the burden of proving them upon the plaintiff, and admits evidence by the defendant (1) to controvert plaintiff's evidence, (2) to disprove his allegations, and (3) to prove other and inconsistent facts. Under such denial, the defendant may prove his right to possession, or that he, as an officer, levied on the property at the suit of a creditor of him from whom the plaintiff obtained it in fraud of creditors, or he may show title in a stranger." Section 492. The reason of the rule is that it is unfair to compel the defendant to anticipate what the proof of plaintiff's title will be, and allege specific objections to it, before he will be heard to attack it with his proofs. The plaintiff, under his general allegations, is allowed to show any title he can, no matter what may be its source or the facts upon which it is based. Under his denial, the defendant must, of necessity, be allowed to present proof of anything tending to defeat the title which the plaintiff attempts to establish. If the complaint does not disclose the plaintiff's title, the defendant may have no knowledge of it until it is revealed by the proof at the trial. Especially is this true of an officer who has taken the property under his writ from the possession of the defendant debtor named therein, and is afterwards met by a claim thereto from a stranger, about whose title he knows nothing. There is some conflict in the authorities, but we are of the opinion that this view is correct on reason and principle. The following authorities support it: Cobbey, Repl. § 752; Burchinell v. Butters (Colo. App.) 43 Pac. 459; Jones v. McQueen (Utah) 45 P. 202; Munns v. Loveland (Utah) 49 P. 743; Abb. Tr. Brief, §§ 942, 958; Bailey v. Swain, 45 Ohio St. 657, 16 N.E. 370; Steel Works v. Bresnahan, 66 Mich. 489, 33 N.W. 834; Bank v. Bane, 20 Neb. 294, 30 N.W. 64; Merrill v. Wedgwood, 25 Neb. 283, 41 N.W. 149; Graham v. Warner's Ex'rs, 3 Dana, 146; Mullen v. Noonan (Minn.) 47 N.W. 164; Johnson v. Oswald, 38 Minn. 550, 38 N.W. 630; Delaney v. Canning, 52 Wis. 266, 8 N.W. 897; Mather v. Hutchinson, 25 Wis. 27; Hotchkiss v. Ashley, 44 Vt. 195; Bliss v. Badger, 36 Vt. 338; Lane v. Sparks, 75 Ind. 278; Stephens v. Hallstead, 58 Cal. 193; Eaton v. Metz (Cal.) 40 P. 947; Pulliam v. Burlingame, 81 Mo. 111; Gray v. Parker, 38 Mo. 160; Schulenberg v. Harriman, 21 Wall. 44; Bailey v. Bayne, 20 Kan. 657; Bliss, Code Pl. § 328 and notes; Griffin v. Railroad Co., 101 N.Y. 349, 4 N.E. 740.

In addition to the issue made upon the allegations of the complaint, the defendants herein allege justification under the writ of execution in the case of Cooney against Bordoni and claim the right to hold the property under this writ. The defendants, therefore, through the writ of execution in the hands of the officer, stand in the position of creditors, as to whom a conveyance by a debtor, either actually or constructively fraudulent, is absolutely void. They were, therefore, properly permitted to introduce any proof under their answer tending to show that the sale from Bordoni to plaintiff was constructively fraudulent, because there was no immediate delivery of the property followed by a continued change of possession, or that the sale was actually fraudulent and designed to hinder and delay the creditors of Bordoni, or that the arrangement between Bordoni and Gallick was designed to operate as a security to the firm of Gallick Bros. for the money advanced to Bordoni to pay the Brennen judgment. It is not necessary to decide the question whether, in cases of this kind, where the officer seizes property under his writ in the possession of the defendant named in the writ, it is necessary to plead specially the facts in justification. Many of the authorities cited support the rule as laid down by Mr. Phillips, supra. In this case, however, he has essayed to do so, and no question is made as to the sufficiency of his allegations in this regard. Inasmuch as he occupies the position of one who claims the property, not as owner, but by virtue of a special interest...