Hage v. Orton

• Decision Date: 13 December 1946
• Docket Number: 8656.
• Citation: 175 P.2d 174,119 Mont. 419
• Parties: HAGE v. ORTON.
• Court: Montana Supreme Court

175 P.2d 174

119 Mont. 419

HAGE v. ORTON.

No. 8656.

Supreme Court of Montana

December 13, 1946

Rehearing Denied Dec. 27, 1946.

Appeal from District Court, Thirteenth District, Yellowstone County Benjamin E. Berg, Presiding Judge.

Action for conversion by Mrs. Marie Mikalson Hage against H. S Orton. From a judgment for plaintiff, defendant appeals.

Affirmed.

Hennessey & Hennessey, of Billings, for appellant.

H. C Crippen, of Billings, for respondent.

ANGSTMAN Justice.

This is an action for damages in conversion. The jury found for plaintiff in the sum of $2,000 and judgment was accordingly entered in her favor. Defendant has appealed from the judgment.

By several specifications of error defendant challenges the sufficiency of the complaint. On application of plaintiff she was granted leave, over defendant's objection, to amend the complaint on three occasions during the trial. The last time was after plaintiff had rested. Defendant contends this was error. The matter of allowing or denying amendments rests in the discretion of the trial court and unless that discretion has been clearly abused we will not interfere. Flynn v. Helena Cab & Bus Co., 94 Mont. 204, 21 P.2d 1105. The court did not abuse its discretion in allowing the amendments and we shall therefore consider the sufficiency of the complaint as finally amended.

The complaint alleged that on December 16, 1941, defendant and one W. W. Henley were co-partners doing business in Billings under the name of the L. P. Gas and Equipment Company (hereinafter referred to as the L. P. Co.) in the handling and sale of Butane, Propane and other liquified petroleum gas; that on ther day plaintiff, defendant and Henley entered into a partnership agreement under the name of Billings Bottle Gas Company (hereinafter referred to as the Billings Co.). The agreement provided that the L. P. Co. would surrender its right to handle and sell bottled gas in the Billings area and would furnish to the Billings Co. all needed gas for its business at cost price plus cost of transportation; that plaintiff should and did furnish $1,000 in return for a 60% interest in the business of the Billings Co. and the other two partners should transfer the bottle gas equipment and business of the L. P. Co. to the Billings Co. for a 20% interest to each in the Billings Co.; that after the formation of the Billings Co. defendant represented to plaintiff that, in order to properly do business, two 1,000 gallon gas tanks and equipment should be purchased for the use of the Billings Co.; that such tanks and equipment would cost $2,000 and advised plaintiff to advance the money. Plaintiff agreed to do so. Defendant represented to plaintiff that he could handle the purchase to the best advantage if her check should be drawn in favor of the L. P. Co., which was done; that the money was her own personal property and not funds of the partnership; that the money was received by the L. P. Co. and was used by defendant to buy the tanks and equipment; that plaintiff was unfamiliar with the business and deferred to the judgment of defendant in advancing the money and relied upon his honesty and integrity; that it was understood and agreed by plaintiff and defendant that the tanks and equipment should be sold to the Billings Co. and used in its business; that plaintiff should be the owner thereof until reimbursed by the Billings Co. and that plaintiff was the owner of the tanks and equipment at the time of their conversion and entitled to the immediate possession; that defendant did not purchase the tanks and equipment for the Billings Co. and did not place them in the name of that company but purchased them for the L. P. Co. and took title in the name of that company; that defendant converted the tanks and equipment to his own use, sold the same and received the money therefor personally; that the tanks and equipment at the time of conversion were of the value of $2,000; that plaintiff at no time until the 29th of June, 1943, knew that defendant had placed the title to the tanks and equipment in the L. P. Co. and had sold the same and taken the money.

Under our statute pleadings must be liberally construed with a view to substantial justice between the parties. Section 9164, Revised Codes. And in construing a pleading liberally whatever is necessarily implied by, or is reasonably to be inferred from, an allegation must be taken as directly averred. Marcellus v. Wright, 51 Mont. 559, 154 P. 714; Buhler v. Loftus, 53 Mont. 546, 165 P. 601; Johnson v. Johnson, 92 Mont. 512, 15 P.2d 842; Clem v. Clem, 97 Mont. 570, 36 P.2d 1034.

Testing the complaint by these rules of interpretation, we think the complaint as finally amended was sufficient to state a cause of action.

In effect, aside from the allegations showing the two partnerships, the complaint alleges that plaintiff advanced $2,000 for the purpose of buying tanks and equipment to be used by the Billings Co. and that plaintiff should be the owner thereof until reimbursed by the Billings Co. to the amount of the $2,000; that because of representations of defendant the check was made to the L. P. Co. in which defendant was and plaintiff was not a partner; that defendant did not purchase the tanks and equipment for the Billings Co. but purchased them for and took title in the name of the L. P. Co.; that thereafter defendant sold the tanks and equipment and received the money therefor personally.

It is contended that the complaint does not sufficiently allege plaintiff's ownership and right of possession of the tanks and equipment. We think it does. The tanks and equipment had never reached the partnership which was intended to have the use of them. They had been diverted to the other partnership because of alleged representations of defendant and this she did not learn...