James v. Speer

• Decision Date: 22 November 1923
• Docket Number: 5307.
• Citation: 220 P. 535,69 Mont. 100
• Parties: JAMES ET AL. v. SPEER.
• Court: Montana Supreme Court

220 P. 535

69 Mont. 100

JAMES ET AL. v. SPEER.

No. 5307.

Supreme Court of Montana

November 22, 1923

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

Action by Annie James and another against W. O. Speer. Judgment for plaintiffs, and defendant appeals. Reversed and remanded with instructions.

Timothy Nolan and Harlow Pease, both of Butte, for appellant.

H. J Freebourn and T. E. Downey, both of Butte, for respondents.

STARK J.

On the 24th day of December, 1921, the plaintiffs made, executed and delivered to the defendant their promissory note for the sum of $310.50, payable six months after date, with interest at 10 per cent. per annum, and to secure payment thereof likewise executed and delivered to the defendant a chattel mortgage covering one counter, one meat block, one meat rack, one ice box, one Toledo Scale No. 581-BN-Gold 299145, fifteen trays, two meat saws, one cleaver, two knives, one rake, window shades, two light shades, light globes, one sharpening steel, one stove, meat, and awning, comprising the fixtures and furniture of a meat shop situated at 407 South Main street in the city of Butte. This mortgage is in the usual form and contains the following clause: "Or if the said mortgagee shall at any time consider the possession of said property, or any part thereof, essential to the security of the payment of said promissory note, * * * then * * * the said mortgagee * * * shall have the right to immediate possession of said described property and the whole or any part thereof. * * *"

On March 4, 1922, defendant, assuming to act under the above provisions of the mortgage, took possession of the property described therein, posted notices of sale on foreclosure, and on March 20, 1922, being the date specified in the notices, the property was offered for sale and was bid in by the defendant, but for reasons hereafter shown this sale was a nullity and did not affect the rights and liabilities of the parties to this suit.

On April 10, 1922, the plaintiffs commenced this action alleging that they were the owners and entitled to the possession of the above property at the time defendant took possession of the same; that defendant in taking possession of the property and selling the same, was without right or authority so to do and thereby converted the same to his own use. It is alleged that the value of the property at the time the defendant took possession of and sold it was $1,015, for which amount plaintiffs asked judgment.

To this complaint the defendant filed an answer on May 16, 1922, in which the allegations of the complaint were denied and the value of the property was alleged to be only $400. For an affirmative defense the answer set out the giving of the note and mortgage as alleged by the plaintiffs, and sought to justify the taking of the same under the above-quoted clause of the mortgage; paragraphs II and III of the answer being as follows:

"II. On and prior to March 13, 1922, the meat market upon the chattels of which the said mortgage was given was being conducted improvidently and was in failing circumstances, which facts became known to the defendant, by reason whereof the defendant did then consider the possession of said property and the whole thereof essential to the security of the payment of said promissory note.

III. On or about March 13, 1922, the defendant had reason to believe and consider, and did believe and consider, that the possession by him of the whole of the personal property covered by said mortgage was necessary and essential to the security of the payment of said promissory note."

It is then alleged that by reason of these facts the defendant on or about March --, 1922, by virtue of the power conferred on him by the chattel mortgage, took possession of all of the property described therein and, after giving notice in accordance with law, sold the same as heretofore set forth and filed return of such sale in the office of the clerk of Silver Bow county.

Thereafter, on August 26, 1922, the defendant filed an amended and supplemental answer and counterclaim, containing the same allegations as the original answer in reference to the execution of the note and mortgage and seizure of the property, but alleging that he retained possession of the property until August 8, 1922, when he advertised it for sale, and on August 14, 1922, sold the same for the sum of $300, defendant himself becoming the purchaser; that the amount then due upon the note, together with the costs of foreclosure, was $397.42, and, after applying the amount realized from the sale thereon there was still due to the defendant from the plaintiffs the sum of $97.42, for which amount he asked judgment against them.

The plaintiffs' reply admitted the execution of the note and mortgage as set forth in the amended answer and counterclaim, but denied all of the other allegations.

The cause was tried before the court with a jury, and resulted in a verdict in favor of the plaintiffs for the sum of $1,015, upon which judgment was entered, from which defendant has appealed.

The testimony introduced at the trial was very brief. The plaintiffs called the defendant as a witness and by him proved the original answer, which was thereupon admitted in evidence. The events leading up to the defendant's taking possession of the property were disclosed in the testimony of the plaintiff Charles H. James, who detailed a conversation between himself and defendant on February 25, 1922, as follows:

"He came into the meat market and says, 'I understand that you are closing up the meat market.' I said, 'Not exactly closing; I still have meat and have a few customers.' I had some meat left, and I had some customers left, and that I intended to go to work in the mines until times got better, and I intended to carry on my business again. And he said to me, 'What about taking--don't you think I had better take these scales?' and I said, 'No;' I said 'I need them at present to weigh out the meat that I have left.' He said, 'You know I can take them if I want to.' I said, 'No; you nor no one else can remove these scales until the mortgage is due, and I fail to make payment.' He said, 'You know as much about law as you do about business;' and I told him that he needn't be throwing assertions that way against me, that some people were trying to down me wasn't as good, or rather any better, if as good, as I am myself. And he raised his cane and said 'No ____ can down my character;' and I said 'I am not trying to down your character, but you are trying to down mine, which you are doing;' and then he said, 'You know I had no intention of taking the scales when I came in here, but now I will show you that I will,' and started out the door. He was very angry at that time."

This witness also gave testimony as to the plaintiffs' ownership of the property, and with reference to the value thereof said: "I had bought other store fixtures. I had spent other money on the equipment in that shop. I knew the reasonable value of the property in that place on March 4, 1922. The reasonable value of the scales on March 4, 1922, was $225. The ice box on that date was reasonably worth $400. The meat block, rack, and counter were reasonably worth on the date $250. The platters were reasonably worth $15. The knife and cleaver were reasonably worth $5. The reasonable value of the awning was $20. The reasonable value of the rake was $1. The reasonable value of the window shades was $2."

The total value of all the items testified to by this witness is $918, and there was no other evidence of value offered by either plaintiffs or defendant.

The plaintiff Annie James testified that she overheard the latter part of the above conversation between her husband and defendant on February 25; that she saw defendant thump his cane down on the floor and heard him say, "I will show you that I can take it," and that he seemed very angry at the time. The defendant did not deny the conversation. The evidence further showed that at the time this conversation took place, and just prior to the time defendant took possession of the property, plaintiffs were planning to close the meat market until times improved so as to justify reopening it, and that plaintiff C. H. James intended to go to work in...