Haynes v. Kettenbach Co.

• Decision Date: 18 May 1905
• Citation: 11 Idaho 73,81 P. 114
• Parties: HAYNES v. KETTENBACH COMPANY
• Court: Idaho Supreme Court

81 P. 114

11 Idaho 73

HAYNES v. KETTENBACH COMPANY

Supreme Court of Idaho

May 18, 1905

TROVER-CONVERSION-DENIAL-PROOF.

1. Where a complaint contains the usual allegations in an action of trover and conversion and the conversion is denied by the answer, the question of whether the property referred to was converted by the defendants is directly put in issue, and the defendants may introduce any proof that would disprove the allegation of conversion.

2. It may be shown in the defense that the plaintiffs authorized the defendants to sell the property alleged to have been converted and to account to them for the proceeds.

(Syllabus by the court.)

APPEAL from the District Court of Nez Perce County. Honorable Edgar C. Steele, Judge.

Action for the conversion of certain wheat. Judgment for the defendants. Affirmed.

Judgment affirmed, with costs in favor of respondents.

McFarland & McFarland, for Appellant.

By the statement of the case and the transcript the only issues were: Under respondent Kettenbach's answer, did Smith sell the grain he produced upon appellant's land to the Kettenbach Company, Limited? If Smith sold Kettenbach Company, Limited, said grain, did that corporation have notice or knowledge of appellant's right, title or interest in or to said wheat? Did Kettenbach Company Limited, convert said wheat to its own use and benefit? Did Smith refuse to deliver one-fourth of said wheat to appellants? What was said wheat worth per bushel? How much were appellants damaged by the acts of the respondents in the premises? Issues arise upon the pleadings when a fact or conclusion of law is maintained by the one party and is controverted by the other. They are of two kinds: "1. Of law; and 2. Of fact." (Idaho Rev. Stats., 4265.) The evidence must be confined to the issues made by the pleadings. (Haner v. Northern P. R. R. Co., 7 Idaho 305, 62 P. 1028.) Judgment may be given for or against one or more of several plaintiffs, and for or against one or more of several defendants; and it may, when the justice of the case requires it, determine the ultimate rights of the parties on each side as between themselves. (Idaho Rev. Stats., secs 4351, 4353; Hewitt v. Maize, 5 Idaho 633, 51 P 607.) Where a variance is not material, the court may direct the fact to be found according to the evidence, or may order an immediate amendment without costs. (Hawkins v. Pocatello Water Co., 3 Idaho 766, 35 P. 711.) We maintain that had respondent Smith framed his answer so as to conform to his testimony, the appellants would have been entitled to a judgment upon the pleadings against him. Again, we desire to call this honorable court's attention to the letter written by Smith to appellant, Abbie R. Haynes. Does it show that Mr. Haynes sold the wheat to Smith, or authorized him to sell it? Does it not show that Smith never did intend to comply with his agreement or to pay appellants for the grain he unlawfully sold?

George W. Tannahill and James E. Babb, for Respondents.

The complaint contained the usual allegations in an action of trover and conversion, alleging among other things: That the plaintiff at the time of the alleged conversion was the owner of, and entitled to the possession of, the property described. Each of these allegations, as well as all other material and vital allegations of the complaint, were specifically denied by each of the defendants in their separate answers. These denials for every purpose of the question involved had the effect of the plea of the general issue or not guilty at the common law. The contention of the appellant is that under such an answer evidence could not be received for the purpose of showing that the defendants had acquired the property by purchase, either directly from the plaintiffs or through the plaintiff's vendee, nor could evidence be received that the defendant Smith sold the property to the defendant, the Kettenbach Grain Company, by the consent of the plaintiffs. Upon this question the overwhelming weight of authority is against the appellants; in fact, there are very few well-considered cases that can be found in the books that support the contention of the appellants. At common law a plea of not guilty put in issue the plaintiffs' averments as to his ownership of the property and right of possession, and entitled the defendant to introduce any and all evidence to overcome such allegations, and this is the rule which prevails in most of the states. (21 Ency. of Pl. & Pr. 1096; Leary v. Moran, 106 Ind. 560, 7 N.E. 236; Swope v. Paul, 4 Ind.App. 463, 31 N.E. 42; Kerwood v. Ayres, 59 Kan. 343, 53 P. 134; Campbell v. Meyer Bros. Drug Store, 7 Kan. App. 501, 54 P. 287; Eureka Iron Works v. Bresnahan, 66 Mich. 489, 33 N.W. 834; Hart v. Hart, 48 Mich. 175, 12 N.W. 33; Johnson v. Oswald, 38 Minn. 550, 8 Am. St. Rep. 698, 38 N.W. 630; Griffin v. Long Island R. Co., 101 N.Y. 348, 4 N.E. 740; Robinson v. Peru Plow Co., 1 Okla. 140, 31 P. 988; 21 Ency. of Pl. & Pr. 1098; Leary v. Moran, 106 Ind. 560, 7 N.E. 236; Nichilas Co. v. Minnesota Threshing Machine Co., 70 Minn. 528, 73 N.W. 415; Haner v. Northern P. R. R. Co., 7 Idaho 305, 62 P. 1028.)

SULLIVAN, J. Stockslager, C. J., and Ailshie, J., concur.

OPINION

SULLIVAN, J.

This action was brought to recover $ 117.60, alleged to be the value of one hundred and sixty-three and one-half bushels of wheat, which respondent, W. A. Smith, sold to the respondent, the Kettenbach Company. The action was originally brought in a justice's court and appealed to the district court, where it was tried by a court with a jury, and a verdict and judgment was rendered and entered in favor of the respondents.

The appellants are husband and wife, and the wife was the owner of a certain tract of land situated in Nez Perce county, and in the spring of 1902 they leased said premises to respondent Smith for that year. And it is alleged in the complaint that he agreed to pay as rental one-fourth of all the grain products raised on the premises, which he was to sack and store in a warehouse in Lewiston for appellants; that under said agreement he raised six hundred and fifty-four bushels of wheat, and that plaintiffs' share thereof was one hundred and sixty-three and one-half bushels. It is alleged that said Smith did not pay or deliver to appellants the said one hundred and sixty-three and one-half bushels of wheat, and did not deliver the same to any warehouse for them, but in violation of his agreement sold and delivered the said wheat to the respondents, the Kettenbach Company, Limited, who had notice and knowledge of appellants' right and title thereto, and that said company converted all of said wheat to its own use and benefit; that said wheat was worth seventy cents per bushel.

Respondents filed separate answers. The Kettenbach Company deny that said Smith sold or delivered said wheat, or any portion thereof,...