Kipp v. Silverman
| Decision Date | 06 May 1901 |
| Citation | 64 P. 884,25 Mont. 296 |
| Parties | KIPP v. SILVERMAN et al. |
| Court | Montana Supreme Court |
Appeal from district court, Teton county; D. F. Smith, Judge.
Action by Joseph Kipp against J. Silverman and Sol Cohen co-partners, and others. From a judgment for plaintiff, and from an order denying a new trial, defendants appeal. Reversed.
J. G Bair and Thos. E. Brady, for appellants.
M. M Lyter, for respondent.
Action for damages for a conversion of a stock of merchandise. The complaint alleges, in substance, that on August 22, 1896, the plaintiff was the owner and in possession of a stock of merchandise at Browning, in Teton county; that the defendant Zimmerman was then, and at the time this suit was begun, the sheriff of said county, and that all the defendants, except Silverman and Cohen, were sureties upon his official bond; that on or about August 18, 1896, the defendants Silverman & Cohen, having brought an action in the district court of Teton county against one A. B. Hamilton, and having caused an attachment to be issued therein, placed the attachment in the hands of Zimmerman for service, and instructed and directed him to levy upon the stock of merchandise as the property of said Hamilton for the satisfaction of the judgment which they sought in that cause; and that, on August 22d, Zimmerman, acting under this writ, wrongfully seized and took the property from the possession of the plaintiff, and converted it to the use of himself and the other defendants, to the plaintiff's damage in the sum of $2,000. The defendants, answering jointly, deny the plaintiff's title and possession; allege that the goods were the property of Hamilton; admit a value of $1,000; and justify the seizure under the attachment issued in the action of Silverman & Cohen against Hamilton. They also allege a subsequent recovery of a judgment against Hamilton by Silverman & Cohen, and a partial satisfaction thereof by the proceeds of a sale of the property under execution by Zimmerman. The answer, when filed, also contained the following paragraph: "The defendants, further answering, allege it to be a fact that the said A. B. Hamilton was in the sole and exclusive possession of said stock of goods, had purchased the same in his own name, had them shipped in his own name, and was selling them and dealing with them without directions from any person, and was the sole owner thereof, and that he alone had license and permit to expose goods for sale at said place, and the plaintiff was estopped from claiming any interest therein, or from dealing therein, or handling the same, in any manner; that said goods were upon an Indian reservation, and the said A. B. Hamilton was handling and selling the same as a licensed post trader at said place, and that the rules of the department covering Indian reservations forbade the plaintiff, or any person other than the said A. B. Hamilton, from selling any goods at said place." Upon the filing of the answer, counsel for plaintiff filed a written motion asking the court to strike out this paragraph, on the ground that it was "immaterial, irrelevant, redundant, sham, and frivolous." The motion was noticed for August 2, 1897, or as soon thereafter as it could be heard, but was not called for hearing until October 4, 1897, the date set for the trial. On that day the court heard and sustained the motion. Thereupon a trial was had, resulting in a verdict and judgment for plaintiff in the sum of $1,806.88, with costs. The defendants have appealed from the judgment and an order denying them a new trial.
1. Error is assigned upon the action of the trial court in striking out the last paragraph of the answer, on the ground that the defendants had no notice of the motion, and also upon the ground that the matter stated manifested an attempt on the part of the defendants to plead an estoppel, and therefore any defect therein could only be reached by demurrer. There is no merit in the assignment. Manifestly, the notice of the motion given defendants was sufficient for a hearing on August 2d. It was also sufficient for any date thereafter, provided it was called up at the first opportunity, and at a time when counsel for defendants was present, as in fact he was, when the motion was heard; for the record shows that the motion was granted after argument by counsel for both sides. Indeed, we think the court would have been justified in striking out the paragraph upon its own motion, if brought to its attention at any time before or during the trial. The matters alleged were clearly redundant. The truth of them, as pleaded, if admitted or established by the evidence, would not be defense by way of estoppel ( Sweetman v. Ramsey, 22 Mont. 323, 56 P. 361), but would rebut the claim of title by plaintiff, and were therefore admissible as evidence, under the denials in the answer. Gallick v. Bordeaux, 22 Mont. 470, 56 P. 961. Such was the theory of the trial court, for the defendants were permitted, both upon cross-examination of the plaintiff and in the introduction of their own evidence, to go fully into the situation at Browning, and the relations sustained to the business by Hamilton.
2. The plaintiff testified, in substance, on direct examination that he had had a store at Browning for two years or more prior to the date of the levy, and was the sole owner of it; that Hamilton was his clerk, and that one Haggerty was his head man and book-keeper, with authority to buy and sell goods. On cross-examination he stated that he had been running two stores upon the Blackfoot Indian reservation, but that, owing to a change of rules by the interior department, he could no longer do so; that he thereupon employed Hamilton to run the store at Browning in his (Hamilton's) name in order to evade the rules of the interior department; that the goods shipped from wholesale houses were mostly shipped to plaintiff's other store, about six miles away, and were sent from there to the Browning store; that some of them were shipped directly to Hamilton in his own name, all of those going to the Browning store being marked "Agency Store"; that plaintiff usually ordered and personally paid for all goods shipped; that, when Hamilton made out orders for goods, plaintiff O. K.'d them all, but that Hamilton may have ordered some goods in his own name; that Hamilton managed the store absolutely when plaintiff was not there, extending credit and selling goods as he saw fit, as though the business was his own, but that he had no interest in the business other than as employé of plaintiff. Upon his redirect examination he was permitted to identify a written contract entered into between himself and Hamilton on June 15, 1896, under the terms of which Hamilton agreed to undertake the management of the store at Browning for one year as plaintiff's agent, at a salary of $100 per month. He also identified several letters purporting to contain orders for goods for the Browning store, bearing date from June 11 to June 24, 1896, and addressed to various wholesale dealers at Helena, Mont., St. Paul, Minn., and other places. Most of them contained a request that the goods be billed and shipped to Hamilton, with a duplicate bill to plaintiff, and that they be charged to plaintiff's account. In several instances it was explained that the plaintiff owned the store at Browning, but was permitted to have only one store upon the reservation, and it was necessary that his name should not appear on the bills sent to Hamilton. To these letters, he stated, his name was signed by his bookkeeper, Haggerty, who had authority to order goods in his name. Thereupon the contract and the letters were all admitted in evidence as exhibits to plaintiff's testimony, over the objection of defendants, the grounds of objection to them being that they were immaterial and irrelevant, as not tending to establish ownership in plaintiff. The court, in overruling the objection, stated that unless it should be shown that the letters were actually sent to the firms to which they were addressed, and that goods were sent in obedience to the requests contained in them, they would be stricken out. Thereupon Haggerty was sworn as a witness, and, after stating fully the relation of...
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