Hardie v. Peterson
| Decision Date | 03 December 1929 |
| Docket Number | 6504. |
| Citation | 282 P. 494,86 Mont. 150 |
| Parties | HARDIE v. PETERSON et al. |
| Court | Montana Supreme Court |
Appeal from District Court, Toole County; R. M. Hattersley, Judge.
Action by J. J. Hardie against J. B. Peterson, trustee, and others. From judgments of dismissal, plaintiff appeals. Affirmed as to defendant Spear and another. Reversed and remanded for a new trial as to defendant Peterson and others.
Harris & Hoyt, of Shelby, for appellant.
W. M Black, of Shelby, and T. H. MacDonald, J. Miller Smith, Paul W. Smith, and David R. Smith, all of Helena, for respondents.
This is an action in conversion to recover the reasonable value of 954 feet of oil and gas well casing of the alleged value of $1,800. The cause was tried to the court sitting with a jury. At the conclusion of plaintiff's evidence the court sustained motions for nonsuit interposed by the several defendants and accordingly entered judgments of dismissal and for costs. The plaintiff has appealed from the judgments.
When the case was called for trial, the court, over objections by plaintiff, permitted the filing of amended answers on behalf of all defendants. This ruling is assigned as error by plaintiff.
An application to amend a pleading is addressed to the discretion of the trial court, and, unless there has been a clear abuse of discretion, the action of the court will be sustained on appeal. Here the plaintiff made no application for a continuance and made no suggestion that he was not prepared to proceed to trial on the issues presented by the amended answers. Under such circumstances he is not in a position to assert that the trial court abused its discretion in allowing the amended pleadings to be filed. Sandeen v Russell Lumber Co., 45 Mont. 273, 122 P. 913; Callan v. Hample, 73 Mont. 321, 236 P. 550; Wandel v Wandel, 76 Mont. 160, 248 P. 864.
Plaintiff contends that the evidence presents a prima facie case for the jury and that it was error to sustain the motions for nonsuit as to each and all of the defendants.
The plaintiff testified: That he is the owner of the casing in question, and that he never bartered or sold it to any one. That on September 1, 1926, Moulton approached him and asked if he would loan the casing to the well known as the Broderick well. He said: "My agreement with Mr. Moulton regarding the loan of this casing was that I would loan that casing for use in the well for a period not to exceed thirty days, and that it was to be returned to me in good condition at a location I might name when called upon, or after the completion of the well." Pursuant to this arrangement, the casing was taken from his possession and hauled to the Broderick well. That it has not been returned, though demand had been made of Attorney Black for its return and from Mr. Edwards and Dr. Spear. On cross-examination, he said he personally had no transactions with any of the defendants in the case; that a conversation took place in the office of Attorney Harris in which either Conrad or M. W. Edwards admitted that the casing belonged to plaintiff and that he was entitled to payment from somebody.
W. E. Burk testified that he is a drilling contractor and did some work on the well in question in repairing and cleaning it at the request of defendant Dr. Spear. He said Dr. Spear intimated that each party (meaning thereby Mr. Edwards, Dr. Spear, and their associates) would pay their proportion of the expense.
Moulton testified: That defendants Peterson and M. W. Edwards talked with him in August, 1926, relative to renting some casing. He made arrangements to loan them the casing in question here, providing they would be through with it in 30 days. He got the casing from plaintiff. He stated, Peterson looked the casing over and said it was all right, that he would take it and deliver it in 30 days; that if the witness had to have casing sooner and they were not through with it they would try to deliver him the same kind of casing. Peterson paid him for the use of the casing by assigning a 40-acre tract, cornering the 40-acre tract that the well was on. The witness paid nothing to plaintiff for the use of the casing.
J. B. Peterson testified: That he made the arrangements with Moulton for the casing in question. That he originally obtained the oil lease from Broderick covering the land on which the well was drilled. He subsequently assigned the lease to Conrad and Edwards, who drilled the well in which the casing in controversy was used. His arrangements were with Conrad, and he told Conrad that the casing could be had from Moulton, and "in the event it was a dry hole they was to pull it out and deliver it, and if it was a commercial well they was to pay for it." The witness said he stated to Moulton that he was acting for Conrad.
E. W. Conrad testified that he was associated with M. W. Edwards and a number of others in drilling the well; he and Edwards were acting together as a trustee, handling the funds; that the well turned out to be a producer of gas in commercial quantities.
M. W. Edwards testified that he was associated with Conrad in drilling the Broderick well; the relationship was one of trusteeship; there was no written trust agreement; that defendant Ruth M. Edwards is the owner of a one-half interest in the lease.
The record also contains a copy of the original lease by Broderick to J. B. Peterson, trustee, a copy of an assignment of lease by J. B. Peterson, trustee, to E. W. Conrad and M. W. Edwards, reserving an overriding royalty interest, a copy of an assignment by Conrad and Edwards, a copartnership, to East Chicago Oil Association, of an overriding royalty interest, copies of assignments of overriding royalty interests by R. M. and M. W. Edwards to Dr. Spear, trustee, and a copy of an assignment of a one-half interest in the oil and gas lease by M. W. Edwards to R. M. Edwards. There was also evidence showing the value of the casing.
It will be seen that the evidence offered by plaintiff's witnesses is in many particulars conflicting.
The plaintiff invokes the rule often stated by this court that, in considering a motion for nonsuit, the evidence must be viewed in the light most favorable to him. Defendants contend that, when the plaintiff called the defendants as his witnesses, he is bound by their testimony. There are numerous decisions of this court which seem to support the defendants' contention. Among them may be cited the following: Sommerville v. Greenhood, 65 Mont. 101, 210 P. 1048; Tebay Land & Live Stock Co. v. Hastie, 64 Mont. 509, 210 P. 605; Cook v. MacGinniss, 72 Mont. 280, 233 P. 129; State v. Richardson, 63 Mont. 322, 207 P. 124. In these and perhaps in other cases the statement is made that a party is bound by the testimony of his own witnesses. This statement, however, must be accepted with some qualifications. A party producing a witness is not allowed to impeach his credit by evidence of his bad character, but, under the express provisions of our statute, he may contradict him by other evidence. Section 10666, Revised Codes 1921, provides: "The party producing a witness is not allowed to impeach his credit by evidence of bad character, but he may contradict him by other evidence, and may also show that he has made at other times statements inconsistent with his present testimony, as provided in section 10669." Hence, if a plaintiff may contradict his own witness by other evidence, then such other evidence should be available to him in considering the motion for nonsuit.
The rule is well established that, if there is a conflict in the evidence arising from discrepancies between testimony of witnesses called for plaintiff, a nonsuit is improper if some of the evidence supports the plaintiff's case. 38 Cyc. 1558, note 28; Kaufman v. Bush, 69 N. J. Law, 645, 56 A. 291; Franck v. Hines, 182 N.C. 251, 109 S.E. 21; Olds v. Hines, 95 Or. 580, 187 P. 586, 588, 188 P. 716; Henry v. Etowah Dredging Co., 141 Ga. 406, 81 S.E. 197; Smith v. City of Rome, 16 Ga.App. 96, 84 S.E. 734; Lindquist v. Pacific Coast Coal Co., 81 Wash. 73, 142 P. 445; Western & A. R. Co. v. Evans, 96 Ga. 481, 123 S.E. 494, cited and quoted from in Wilson v. Blair, 65 Mont. 155, 211 P. 289, 27 A. L. R. 1235.
The rule was stated in the Olds Case, above, which is typical of that announced in the others, as follows: "We remember also that it is a binding principle that the plaintiff is entitled to the benefit of whatever his testimony tends to prove, although his witnesses may contradict each other, and that, if any reasonable construction of the evidence on his behalf, or any part thereof, shall fairly tend to show that he is entitled to recover, it is the duty of the court to submit the question to the jury."
Hence, if according to the credible testimony of any of plaintiff's witnesses, he has made out a cause of action, the case should have been submitted to the jury even though other witnesses for the plaintiff may have given a contrary version of the facts.
The record fails to disclose any evidence which makes out a prima facie case of conversion against the defendants Dr. Spear trustee, and the East Chicago Oil Association. As to these defendants the record discloses that they had an interest in the well in question, but that interest was shown to be merely an overriding royalty interest in the oil and gas produced from the land. Neither of them has at any time exercised dominion over the well or the casing in question inconsistent with plaintiff's ownership. But it is contended by the plaintiff that the original answer filed on behalf of ...
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