Lindsey v. Drs. Keenan, Andrews & Allred

• Decision Date: 05 February 1946
• Docket Number: 8626.
• Parties: LINDSEY v. DRS. KEENAN, ANDREWS & ALLRED et al.
• Court: Montana Supreme Court

165 P.2d 804

118 Mont. 312

LINDSEY v. DRS. KEENAN, ANDREWS & ALLRED et al.

No. 8626.

Supreme Court of Montana

February 5, 1946

Rehearing Denied Feb. 25, 1946.

Appeal from District Court, Eighth Judicial District, Cascade County; H. H. Ewing, Judge.

Action by Raymond Lindsey against Drs. Keenan, Andrews & Allred, a copartnership composed of F. E. Keenan, F. L. Andrews and I A. Allred, individually and as trustees, and Credit Service Company, Inc., for malicious prosecution. From a judgment of dismissal, plaintiff appeals.

Affirmed.

George Niewoehner, of White Sulphur Springs, for appellant.

Swanberg & Swanberg, of Great Falls, for respondents.

CHEADLE Justice.

Action for malicious prosecution. All defendants were served with summons, and their defaults duly entered for failure to appear within the statutory period.

Apparently the matter was called for hearing before a jury on the question of damages. The following judgment was made and entered:

'The above entitled cause came on regularly for trial before the above entitled court, sitting with a jury, on the 21st day of March, 1945, Mr. George Niewoehner and Mr. Horace S Davis appearing as attorneys for the plaintiff, and Messrs. Swanberg & Swanberg appearing as attorneys for the defendants, and the jury of twelve persons having been duly selected and sworn to try said case, and at the commencement of the trial and after an opening statement had been made by counsel for the plaintiff and upon the plaintiff being duly and regularly sworn as a witness in said cause, and a question having been propounded to him, the defendants objected to the introduction of any evidence in support of the allegations of the complaint upon the ground and for the reason that said complaint did not contain facts sufficient to constitute a cause of action, and thereupon arguments were heard on behalf of both parties and the court having considered the same, said motion was thereupon granted and the complaint was order [ed] dismissed;

'Now, Therefore, It Is Hereby Ordered, Adjudged and Decreed that said complaint does not contain facts sufficient to constitute a cause of action against defendants and said complaint is hereby dismissed and judgment is hereby entered in favor of the defendants and against the plaintiff, together with defendants' costs and disbursements amounting to the sum of _____ dollars.'

Since the trial court's ruling on the motion above referred to and its judgment is based upon the failure of the complaint to state a cause of action, the allegations of the complaint will be fully considered.

It is first alleged that prior to January, 1936, the defendants Keenan, Andrews and Allred rendered medical services to plaintiff, at a charge of $143, later reduced to $141. That at some later date that firm 'employed one F. J. Buscher, of said city of Great Falls, as their agent to collect said debt from plaintiff, and said Buscher did thereupon enter into negotiations with plaintiff for the collection of said debt; that said negotiations culminated in an agreement between said Buscher and plaintiff whereby plaintiff was to perform certain services as payment and discharge of said debt, to-wit: plaintiff was to help Buscher in the business of collecting debts and accounts, and, furthermore, plaintiff was to work at the task of drilling an oil well; that thereupon plaintiff accordingly worked about six (6) weeks at the task of drilling an oil well and plaintiff also performed services collecting bills and accounts under the said Buscher's direction; that upon completing the aforementioned work and services, plaintiff was informed by said Buscher that said debt owing to defendants Keenan, Andrews and Allred was paid and discharged thereby, and in addition to the payment and discharge of said debt the plaintiff received the sum of Thirty-five Dollars ($35.00) in cash from said Buscher as further recompense for the above alleged work and services.'

It is then alleged that the defendants knew, or by exercise of reasonable care, inquiry and diligence should have known that the debt previously owing had been paid and discharged, but nevertheless, and in spite of the payment and discharge of the debt the defendants willfully, maliciously and negligently attempted to collect the former debt, for such purpose instituting an action against plaintiff in the Cascade County District Court; that in said action the plaintiffs therein (defendants here) caused a writ of attachment to issue, under which the sheriff of Lewis and Clark County levied against and took possession of certain described personal property belonging to plaintiff. Damages are alleged to have resulted from the seizure and retention of such property for a period of sixteen days, the details of which are not material. With reference to malice and want of probable cause, the complaint alleges: 'That the action against this plaintiff by these defendants, said Cause No.

30002, and the consequent attachment were instituted and carried on without probable cause therefor and with the malice aforesaid; that said defendants discontinued and terminated the attachment and thereafter abandoned and terminated their said action in favor of this plaintiff.'

Appellant specifies the following errors:

'1. The District Court erred by sustaining the objection by defendants to the introduction by plaintiff of evidence in that said court thus found and concluded that the complaint fails to state facts sufficient to constitute a cause of action against the defendants, or any of them, and the district court erred in dismissing the complaint and rendering judgment against the plaintiff and for the defendants.

'2. The district court erred by permitting the defendants to take part in the hearing of plaintiff's proof of damages, and said court erred by permitting defendants to contest plaintiff's cause of action on the merits at said hearing, all of which was done after defendants were fully and finally in default.'

The questions for determination are, (1) whether the complaint states a cause of action upon which a judgment for damages might be based, and (2) if it does not, was the district court empowered to permit and sustain a motion for dismissal and to enter judgment of dismissal.

Appellant insists that the complaint meets the requirement of section 9129, Revised Codes, of a statement of facts constituting the cause of action, in ordinary and concise language; that facts are sufficiently alleged to enable the defendants to understand and determine the nature of the claim brought against them. Respondents contend that the complaint on its face affirmatively shows that no cause of action is pleaded. In support of this contention they urge that it affirmatively shows that plaintiff was indebted to defendants when the action was commenced, conclusively negativing want of probable cause, one of the essential elements in an action for malicious prosecution.

From that portion of the complaint quoted above it appears that at some time prior to the filing of Cause No. 30002, the plaintiff here was indebted to Drs. Keenan, Andrews and Allred in the sum of $141, and employed one F. J. Buscher as their agent to collect such indebtedness from plaintiff; that Buscher employed plaintiff to perform certain services for him as payment and discharge of the debt; that after plaintiff had worked for Buscher for about six weeks, he was informed by Buscher that said indebtedness was paid and discharged thereby; that in addition to the payment and discharge of said debt plaintiff received the sum of $35 in cash from Buscher as further recompense for such services. Nowhere in the complaint is it alleged that Buscher had special authority to collect or to accept payment of said indebtedness in anything except money, or the existence of any such commercial, usage or custom, or that the creditors ratified the action of their agent in accepting any other medium of payment than money. From the allegations of the complaint it appears conclusively that payment was made by plaintiff, not in money, but by the performance of services for Buscher, in return for which Buscher presumably assumed the obligation of plaintiff to the firm of doctors. Such did not constitute payment of the indebtedness and was not binding on the creditors.

The general rule as to medium of payment in such cases is thus stated in 2 Am.Jur., § 165, p. 133: 'The general rule is that in the absence of express authority or custom to the contrary, the power of an agent authorized to collect or receive payment is limited to receiving that which the law declares to be legal tender, or which is by common consent considered and treated as money, and passes as such at par. This is in accordance with the general principle that authority to receive payment implies only an authority to receive the thing due on an obligation, and not an authority to commute for any other thing.' (Citing cases.) See also 2 C.J., p. 611; 2 C.J.S., Agency, § 107, p. 1282; United States National Bank v. Shupak, 54 Mont. 542, 172 P. 324; First State Bank of Hilger v. Lang, 55 Mont. 146, 174 P. 597, 9 A.L.R. 1139; Olsen v. Zappone, 83 Mont. 573, 273 P. 635; Restatement of the Law of Agency, § 72, Annotation 1; Shriver v. Sims, 127 Neb. 374, 255 N.W. 60, 94 A.L.R. 779, 785; Plano Mfg. Co. v. Doyle, 17 N.D. 386, 116 N.W. 529, 17 L.R.A.,N.S., 606.

It is also the general rule that an agent for collection has no authority to discharge the debtor by assuming the debt in settlement of his indebtedness to the latter. 'In the absence of some general usage or custom or express authority the agent cannot discharge the debtor by accepting as payment an agreement that an indebtedness owing from the agent to the debtor...