Harrington v. Stromberg-Mullins Co.

• Decision Date: 28 November 1903
• Citation: 74 P. 413,29 Mont. 157
• Parties: HARRINGTON v. STROMBERG-MULLINS CO.
• Court: Montana Supreme Court

74 P. 413

29 Mont. 157

HARRINGTON v. STROMBERG-MULLINS CO.

Supreme Court of Montana

November 28, 1903

Appeal from District Court, Silver Bow County; Wm. Clancy, Judge.

Action by Con. C. Harrington against the Stromberg-Mullins Company. From a judgment for plaintiff, defendant appeals. Reversed.

Kirk Clinton, for appellant.

J. E Healy, for respondent.

HOLLOWAY J.

This is an action in conversion. The complaint alleges that the defendant is a corporation; that on August 1, 1901, Timothy P. Harrington executed and delivered to the plaintiff and respondent, Con. C. Harrington, his promissory note for $500 due one year after date, with interest at 6 per cent. per annum, and to secure the payment thereof executed a chattel mortgage upon certain personal property; that on August 16 1901, the said Timothy P. Harrington executed and delivered to plaintiff his certain other promissory note for the sum of $500, due one year after date, with interest at 1 per cent per month, and, to secure the payment thereof, executed a second chattel mortgage upon the same personal property; that these mortgages were properly verified, acknowledged, and filed for record in the office of the county clerk and recorder of Silver Bow county; that the defendant has entered into possession of the property described in the chattel mortgages, and has converted the same to its own use, and has thereby deprived the plaintiff of his security, to his damage in the sum of $1,000, for which amount judgment is demanded. The defendant made answer, denying the material allegations of the complaint, and pleading fraud in the execution of the mortgages. To this answer plaintiff filed a reply. The cause was tried to a jury, which returned a verdict in favor of the plaintiff for $1,000, and from the judgment entered thereon this appeal is taken. The only question for determination is, does the complaint state facts sufficient to constitute a cause of action?

1. The action is by a mortgagee, whose only interest in the property, so far as the complaint discloses, is the lien secured to a mortgagee out of possession. The date of the alleged conversion is nowhere stated. It may have been at any time prior to the filing of the complaint, November 15, 1901, and was presumably subsequent to the execution of the second mortgage. But the mere allegation that the first note was executed on August 1st and the second on October 15, 1901, does not imply continued ownership or nonpayment of the notes, or either of them. If the plaintiff was not the owner of the notes at the date of the alleged conversion, or if the notes had been paid, he could have suffered no injury, for a transfer of the notes would operate to transfer the mortgages, or payment of the notes would operate to discharge the mortgages, and the necessity for an allegation that the plaintiff was the owner and holder of the notes in question, and that they had not been paid, or, if paid in part, the amount then due upon them at the date of the alleged conversion is apparent.

2. Assuming that the allegations of the complaint are sufficient to show a special property interest in the plaintiff in the property described in the mortgages, the...