Klind v. Valley County Bank of Hinsdale

• Court: Montana Supreme Court
• Writing for the Court: GALEN, J.
• Citation: Klind v. Valley County Bank of Hinsdale, 69 Mont. 386, 222 P. 439 (Mont. 1924)
• Decision Date: 12 January 1924
• Docket Number: 5362.
• Parties: KLIND v. VALLEY COUNTY BANK OF HINSDALE.

222 P. 439

69 Mont. 386

KLIND v. VALLEY COUNTY BANK OF HINSDALE.

No. 5362.

Supreme Court of Montana

January 12, 1924

Appeal from District Court, Valley County; C. D. Borton, Judge.

Action by Waino Klind against the Valley County Bank of Hinsdale. Judgment for plaintiff, and defendant appeals. Affirmed.

Norris Hurd, Rhoades & Hallett, of Glasgow, for appellant.

E. N Hill and Hurly & Kline, all of Glasgow, for respondent.

GALEN J.

This is an action in conversion. The plaintiff in his complaint alleges that he is the owner of 22 head of cattle particularly described therein and that on or about the 17th day of October, 1921, the defendant, well knowing that the plaintiff was the owner of such cattle and entitled to the possession thereof, willfully and maliciously intending to deprive the plaintiff of the cattle, took the same and converted them to its own use, to plaintiff's damage in the sum of $965. In addition to compensatory damages, $500 was asked as exemplary damages. By its amended answer the defendant denied generally the allegations of the plaintiff's complaint, and affirmatively alleged that the cattle in question were covered by a chattel mortgage executed to it by one Jack Klind on December 20, 1920, as security for the payment of the latter's indebtedness and that on the date of the alleged conversion, the mortgage having been unsatisfied, and Jack Klind being in default under the provisions of the mortgage, the defendant took possession of the cattle described in plaintiff's complaint, save and except a spotted face heifer and a red cow with calf; further, that the cattle were taken from the possession of Jack Klind, and not from the plaintiff, and that any interest which the plaintiff may have in the cattle is subsequent in time and inferior in right to the lien of its mortgage. Issue was joined by plaintiff's reply. The cause was tried to a jury, which rendered its verdict in plaintiff's favor for $965, with interest at 8 per cent. from the date of the conversion, and exemplary damages in the sum of $500. Judgment was entered in accordance with the verdict, it being adjudged therein that the plaintiff recover from the defendant "the sum of $965, with interest thereon at the rate of 8 per cent. per annum from and since the 17th day of October, 1921, such interest amounting at the date of the return and entry of said verdict to the sum of $104.43, making an aggregate of $1,069.43, principal and interest, together with the further sum of $500 as exemplary damages, making a total judgment in the sum of $1,569.43," together with plaintiff's costs, taxed and allowed at the sum of $352.50. The defendant moved for a new trial, which was by the court denied April 24, 1923, "unless the plaintiff shall consent, within 10 days from this date to a remission of $30 from the amount found by the jury as plaintiff's actual damages." On the last-mentioned date the plaintiff filed his consent in writing to a remission of the sum of $30 of the amount of damages found by the jury pursuant to the court's order. The appeal is from the judgment as modified.

The errors assigned raised only the question of the sufficiency of the evidence as to plaintiff's actual damages, and to justify the award of exemplary damages.

1. The elements of proof required to sustain an action of conversion are: (1) Plaintiff's ownership and right of possession of the chattels involved; (2) conversion thereof by the defendant; and (3) resulting damages. The rule of damages in case of conversion is fixed by our Code as follows:

"The detriment caused by the wrongful conversion of personal property is presumed to be: (1) The value of the property at the time of its conversion, with interest from that time; or (2) where the action has been prosecuted with reasonable diligence, the highest market value of the property at any time between the conversion and the verdict, without interest, at the option of the injured party." Section 8689, Rev. Codes 1921.

In this case the plaintiff elected to claim damages for the value of the cattle at the time of the alleged conversion. This was proper, for he would not be permitted to rely upon both measures of damages authorized by the statute. Thornton-Thomas Co. v. Bretherton, 32 Mont. 80, 80 P. 10.

In this case we think the proof amply sustains the conversion of the cattle as alleged. It appears that the plaintiff is a brother of Jack Klind and a son of Callie Klind. In the fall of 1921 the plaintiff rented Jack Klind's ranch, and moved there from Callie Klind's ranch, the plaintiff taking with him his cattle. He had a duly recorded brand first registerd by him April 15, 1918, and reregistered October 8, 1921, such brand being M D with a bar underneath it (MD), on the right ribs. Of the cattle in question 20 head were branded with plaintiff's brand, one cow was branded with his brother Charles' brand, W lazy A quarter circle underneath (WS), and one calf was unbranded. A calf was born to the cow branded with Charles Klind's brand after the alleged conversion. Jack Klind's cattle brand is T lazy 4 (Tk), on the right hip, and of the number of cattle so claimed by the plaintiff only one, a red cow, bore the Jack Klind brand, which was vented by crossing it diagonally with a bar, and this animal also carried the plaintiff's brand. She had a calf, and it bore plaintiff's brand alone. The cow which bore his brother Charles' brand the plaintiff purchased in 1918, as did he also the cow bearing his brother Jack's brand. The plaintiff testified that he traded a steer for the cow which he bought from his brother Jack in the year 1918, and that the defendant got the money realized upon sale of the steer.

Jack Klind being indebted to the defendant, and having executed to it a chattel mortgage covering a number of cattle as security, upon default in the payment of his indebtedness, the cashier of the defendant bank, S. M. West, on October 17, 1921, went to the Jack Klind ranch in company with Charles Hall, sheriff of Valley county, and three range riders for the purpose of taking possession of the mortgaged cattle. The riders rounded up a considerable number of cattle, many of which bore the Jack Klind brand. The plaintiff then made claim to Mr. West and to the sheriff of the cattle involved herein, and protested against their being taken away. There were 3 of Jack Klind's cows bearing his brand, with calves by their sides, which calves were branded with plaintiff's brand. The plaintiff said he had bought these calves from Jack Klind in the spring with the consent of the defendant, and the plaintiff then offered to pay for them. Mr. West refused to let them go, saying, in effect, that was the deal all right, but "I think I will back out."

Plaintiff's cattle, together with the cattle bearing Jack Klind's brand, about 41 head in all, were driven away, and the following day the plaintiff executed and served on the sheriff his duly verified third party claim for the cattle involved, plus 3 head of calves, 25 in all. Later, on November 12, 1921, pursuant to published notice, all of the cattle so taken by the sheriff were sold on summary foreclosure in accordance with the terms of the mortgage. When the cattle were offered for sale the plaintiff climbed upon the corral fence whereby they were inclosed and held for inspection, and announced to all prospective buyers assembled that he claimed and owned 23 head of the cattle. He testified:

"I told them, so everybody could hear. They didn't pay any attention to that claim, and went ahead and sold them. They sold the bunch as a whole, not one at a time. I claimed 23 head, because there was one calf born after they left my place, about two days old. The cow branded W lazy A quarter circle had a calf since she left my place."

All of the cattle were sold to S. M. West, representing the defendant bank, the only bidder, for $700. The defendant's mortgage, under which it laid claim to the cattle, was not introduced in evidence, and neither was the note for which it was given as collateral security. The mortgage was offered in defense, and a copy thereof appears in the record. It is found from a reference thereto that it would have been of no avail to the defendant, had it been admitted, for it describes "29 head of cattle, all ages and sexes, branded with Jack Klind's brand, Tk on the right hip."

Prima facie the plaintiff was the owner of the cattle involved herein bearing his recorded brand (section 3304, Rev. Codes 1921), and all evidence introduced by him in support of his ownership and title to the several animals was cumulative, save as respects the cow branded W lazy A quarter circle and the one unbranded calf. The only proof offered by the defendant in any way tending to dispute the plaintiff's claim of ownership to the cattle was elicited from the witness West, cashier of the defendant. He testified that some time prior to October 17, 1921, he had a conversation with Jack Klind, at which Waino Klind was present, relative to the ownership of certain cattle belonging to the Klinds. The conversation took place near Callie Klind's place. Concerning such conversation he says:

"Callie Klind, Jack Klind, Waino Klind, and I think both Charley and Dave, and at least one of the girls, were there. There were present at that time cattle which were represented to me as descendants of the so-called Hoke cows. Q. What conversation did you have with these Klinds relative to the ownership and to the past title of these Hoke cattle on that occasion? A. I asked them if these cattle with this brand, W lazy A quarter circle, were not Dave Klind's cattle, and they went into detail and explained they were Charley Klind's cattle, and had come from the Hoke cattle, and that Charley Klind had

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