Interstate Nat. Bank v. McCormick
| Decision Date | 16 April 1923 |
| Docket Number | 5117. |
| Citation | 214 P. 949,67 Mont. 80 |
| Parties | INTERSTATE NAT. BANK v. MCCORMICK. |
| Court | Montana Supreme Court |
Rehearing Denied May 12, 1923.
Appeal from District Court, Yellowstone County; C. E. Comer, Judge.
Action by the Interstate National Bank against W. H. McCormick. Judgment for plaintiff, and defendant appeals. Affirmed.
Grimstad & Brown, of Billings, for appellant.
Pierson & Smith, of Billings, for respondent.
Plaintiff brought this action to recover damages alleged to have been sustained by reason of defendant's wrongful and unlawful interference with and conversion of certain hay which belonged to it. The facts of the case necessary for a determination of the question involved in this appeal are as follows:
On May 5, 1920, the defendant, W. H. McCormick, ordered from the Gateway Hay Company of Kansas City, Mo., 15 carloads of hay to be shipped to him at Billings, Mont., at the agreed price of $31 per ton for 10 carloads, and $30 per ton for 5 carloads, all f. o. b. Billings. Pursuant to this order the hay company shipped the hay on different dates between the 6th day of May and the 20th day of May, over the Chicago Burlington & Quincy Railroad, consigned to itself at Billings, under bills of lading containing a provision to notify the defendant upon its arrival and allow inspection. The hay company immediately indorsed the several bills of lading to the plaintiff and made drafts on defendant for the purchase price, less freight charges, payable to the plaintiff, and delivered the bills of lading and drafts to the plaintiff, which thereupon gave the hay company credit therefor. The plaintiff indorsed the drafts in due course of business and forwarded them together with the bills of lading, to a bank at Billings for collection, with instructions to deliver the bills of lading to the defendant upon payment of the drafts. In regular course the hay reached Billings, and defendant was notified of its arrival and also of the arrival of the drafts and bills of lading at the bank in Billings, and that plaintiff was the owner thereof and of the hay shipped. The defendant inspected, accepted, and paid for 9 carloads of the hay upon arrival, but refused to accept or pay for the remaining 6 cars. After the arrival of the last six cars of hay at Billings, and, after inspecting the same and finding they were the same as the 9 cars which he had theretofore inspected, accepted, and paid for, on June 5 1920, the defendant herein filed his complaint in the district court of Yellowstone county against the hay company setting forth his transactions with that company as above detailed, that he had received and paid for 9 cars of the hay, but that it was not No. 1 hay as represented to him by said company and was not worth more than $15 per ton, and that, by reason of these and other facts stated in that complaint, he had been damaged in the sum of $2,000, for which amount he asked judgment against the hay company.
After the filing of this complaint, the plaintiff therein also filed an affidavit in the case, reciting the filing of the complaint and the issuance of summons thereon, and stated therein that the hay company was a foreign corporation with its principal office in the state of Missouri; that it had not complied with the laws of this state relative to foreign corporations, and had no agent or place of business in this state and no property herein except 6 cars of hay then on the tracks of the Northern Pacific Railway Company at Billings, which it was about to remove from the state and to dispose of, with intent to defraud him and to prevent him from realizing on any judgment he might recover in the action, and praying that the defendant, its agents, and employees, and particularly the Northern Pacific Railway Company, be enjoined from removing, disposing of, or interfering with any of said hay.
Upon the filing of this affidavit, an injunction order was issued, directed to the hay company, the Northern Pacific Railway Company, the Chicago, Burlington & Quincy Railway Company and F. B. Mitchell, joint freight agent of said railway companies, restraining them and each of them from removing or in any manner disposing of the 6 cars of hay until the further order of the court, which order was duly served upon Mitchell and the two railway companies. The hay company was not served with process and did not appear in the action.
The plaintiff in this action, upon being advised of the above-mentioned proceedings, promptly employed an attorney at Billings, who, on June 8, 1920, notified the defendant herein by letter that it was the owner of the drafts, bills of lading, and the hay covered thereby, and demanded that defendant either take up the drafts by payment, or release the injunction so far as the 6 cars of hay were concerned so that the hay might be disposed of.
Although the plaintiff herein was a stranger to the action brought by McCormick, it filed a petition therein reciting its ownership of the drafts and bills of lading and showing that the demurrage charges against the six cars of hay were constantly increasing, and that, unless the injunction order was released, it would lose the entire value of the hay by the accumulating expenses, and sought to have the order discharged. A hearing was had upon the petition, at which the defendant with his counsel appeared and successfully resisted the plaintiff's attempt, but subsequently, on June 23, 1920, defendant voluntarily obtain an order from the court dismissing the injunction, the reason therefor being explained by his attorney on the trial of this action in these words:
"The reason I voluntarily asked that the injunction order be set...
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