Idaho Placer Min. Co. v. Green

• Decision Date: 07 February 1908
• Parties: THE IDAHO PLACER MINING CO., LTD., a Corporation, Respondent, v. CHARLES GREEN, Appellant
• Court: Idaho Supreme Court

93 P. 954

14 Idaho 249

THE IDAHO PLACER MINING CO., LTD., a Corporation, Respondent, v. CHARLES GREEN, Appellant

Supreme Court of Idaho

February 7, 1908

CLAIM AND DELIVERY-GENERAL DENIAL-PROOFS-SCOPE OF TESTIMONY.

1. In an action for claim and delivery, a specific denial puts in issue all the essential averments of the complaint, and puts the burden of proving them upon the plaintiff.

2. In an action for claim and delivery, under a specific denial of the allegations of the complaint, the defendant may offer evidence (1) to controvert plaintiff's evidence; (2) to disprove his allegations; (3) to prove other and inconsistent facts. Under the general 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, and may also show his own right to possession by virtue of a lien.

3. In an action for claim and delivery, where the defendant files a specific denial, it is not error to sustain a demurrer to a further answer and defense which sets up facts which may be proven under such specific denial.

4. In an action for claim and delivery, where the defendant files a specific denial, it is error for the court to exclude any evidence which tends to defeat the plaintiff's right to possession by showing the right to possession to be in the defendant or in a third party.

5. In an action for claim and delivery, the real question at issue is the right of possession of the property in controversy and this being so, it is competent for the defendant to offer any evidence which may tend to show that the plaintiff did not have the right of possession at the time the action was commenced, as the plaintiff's right to recover depends wholly upon his right to possession.

6. Where a written document is offered in evidence for the purpose of impeaching or contradicting a witness, it is error for the court to refuse such witness an opportunity to explain such written document or evidence.

(Syllabus by the court.)

APPEAL from the District Court of Seventh Judicial District for Washington County. Hon. Ed. L. Bryan, Judge.

Action in claim and delivery. Judgment for plaintiff. Defendant appeals. Reversed.

Judgment reversed, and a new trial granted, and cause remanded. Costs awarded to the appellant.

L. L Feltham, for Appellant.

"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 the 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." (Phillips on Code Pleading, 524.)

"Under a general denial in replevin the defendant may prove any fact which amounts to a defense to the plaintiff's cause of action." (Lindsay v. Wyatt, 1 Idaho 738; Davis v. Culver, 58 Neb. 265, 78 N.W. 504; Iowa Sav. Bank v. Frink (Neb.), 92 N.W. 916; Gallick v Bordeaux, 22 Mont. 470, 56 P. 961; Wester v. Long, 63 Kan. 876, 66 P. 1032; Advance Thrasher Co. v. Pierce, 74 Mo.App. 676; White v. Gemeny, 47 Kan. 741, 27 Am. St. Rep. 320, 28 P. 1011; 8 Ency. of Pl. & Pr. 549.) "Or that defendant claims the property by virtue of a lien for labor performed upon the property." (Lindsay v. Wyatt, 1 Idaho 738; Wester v. Long, 63 Kan. 693, 66 P. 1033; Phillips on Mechanics' Liens, 2d ed., secs. 486-500.) Or ownership in a third person. (Driscoll v. Dunwoody, 7 Mont. 394, 16 P. 726; Pomeroy's Rem., 4th ed., sec. 554; Caldwell v. Bruggerman, 4 Minn. 270; Woodworth v. Knowlton, 22 Cal. 164; Schulenberg v. Harriman, 21 Wall. 44, 22 L.Ed. 551; Sparks v. Heritage, 45 Ind. 66; Timp v. Dockham, 32 Wis. 146; Rockwell v. Saunders, 19 Barb. 473; Chamberlain v. Winn, 1 Wash. 501, 20 P. 781.)

Under the denials in the appellant's answer, he was entitled to give any evidence of special matter which amounts to a defense to the suit. (Holliday v. McKinne, 22 Fla. 153; Payne v. McCormick Har. Mch. Co., 11 Okla. 318, 66 P. 287; Shadduck v. Stotts, 9 Kan. App. 776, 59 P. 39; Westover v. Vandoran, 29 Neb. 652, 46 N.W. 47; Carman v. Ross, 64 Cal. 249, 29 P. 510; Cunningham v. Skinner, 65 Cal. 385, 4 P. 373; Gallick v. Bordeaux, 22 Mont. 470, 56 P. 961; Street v. Morgan, 64 Kan. 85, 67 P. 448.)

Ed. R. Coulter, for Respondent, cites no authorities on points decided.

STEWART, J. Ailshie, C. J., and Sullivan, J., concur.

OPINION

STEWART, J.

This is an action in claim and delivery. The complaint is in the ordinary form and alleges ownership and a right of possession in the plaintiff to certain personal property. The defendant (appellant in this court) denied specifically the allegations of the complaint, and then filed what is denominated a further answer and defense. In this further answer and defense, the defendant set up the organization of the Idaho Placer Mining Company, and an effort made to dissolve said company and reincorporate under the title of The Idaho Placer Mining Company, Ltd. That during the existence of the old corporation, the defendant herein became the owner of 397,000 shares of capital stock of said company and is still the owner of 169,000 shares. That the defendant sold 225,000 shares for $ 10,000 to one John W. Waitz, and agreed with said John W. Waitz that said sum of $ 10,000 should be used by the defendant for the purpose of building a dredge for the said Idaho Placer Mining Company, and that in accordance with said agreement, the defendant planned and constructed a mining dredge, expending therein $ 10,000, and by reason of said sum not being sufficient to finish said dredge, this defendant incurred personal obligations and expended his own funds in the sum of $ 285.82, and performed personal services in the planning and constructing of the same of the value of $ 5 per day, amounting to $ 1,825, which with the $ 10,000 made the total cost of the dredge $ 12,110.82. That in order to raise funds for the purpose of paying the outstanding indebtedness of the Idaho Placer Mining Company, to this defendant and other persons, a meeting of the stockholders of said company was held in which there was represented 482,000 shares of the capital stock of said company; at which meeting it was attempted to reorganize and reincorporate said company under the name of the Idaho Placer Mining Company, Ltd., for the purpose of adjusting all outstanding claims against the Idaho Placer Mining Company, and to take whatever other action was necessary pertaining to the affairs of the company. That at the time of the meeting of said stockholders, it was found that the Idaho Placer Mining Company had no funds with which to carry out the object of the organization. And at which time this defendant entered into an agreement with the stockholders, directors and officers of the corporation, to convey, as president of the company, the mining dredge (the property in controversy), to a new corporation, to be known as the Idaho Placer Mining Company, Limited, in consideration of the stockholders, directors and officers reorganizing said company and raising funds sufficient to pay the indebtedness against said mining dredge, including the services of this defendant in planning and constructing the same; and that in accordance with said understanding, the stockholders and directors of said company prepared and filed the articles of incorporation of the Idaho Placer Mining Company, Limited, and elected a board of directors; and that this defendant executed and delivered, as president of the said Idaho Placer Mining Company, a deed for all the real property of said company, and a bill of sale for the dredge plant to the Idaho Placer Mining Company, Limited, and performed on his part all his obligations agreed upon between him and the stockholders and officers of the two companies; and that at said time it was also agreed between the defendant and the stockholders and directors and officers of said companies, that the defendant should be issued in lieu of stock held by him in the Idaho Placer Mining Company, to wit, 169,000 shares, a like number of shares in the new company. That the new company and its officers have failed to keep or perform their part of said agreement; and have failed to comply with the conditions of said agreement; and have neglected to pay to the defendant the amount paid out by him in the construction of said dredging plant in excess of the moneys received by the sale of his stocks in said company to John W. Waitz, or to pay the defendant for his services any sum whatever.

That at the time the agreement aforesaid was made, it was also agreed that this defendant should be employed as the general manager of the dredging plant at a fixed salary, which was a part of the consideration to the defendant for his executing and delivering to the plaintiff a bill of sale for the said dredging plant. That the plaintiff is indebted to him for his services in planning and constructing the dredge, and for moneys expended by him in the construction of the same in the sum of $ 2,110.82, which is due and unpaid. And that plaintiff never was entitled to an accounting for the money spent in the construction of said dredge plant, and never had any interest in or title to the said dredging plant, after the bill of sale was made. And that the defendant executed the bill of sale, and trusted to the honesty of the Idaho Placer Mining Company, Limited, its directors and officers; but that said bill of sale was...