Maben v. Scott
| Decision Date | 10 October 1898 |
| Citation | 54 P. 860,12 Colo.App. 119 |
| Parties | MABEN v. SCOTT et al. |
| Court | Colorado Court of Appeals |
Appeal from district court, Mineral county.
Action by Walter Scott and another against J.D. Maben. From a judgment, defendant appeals. Reversed.
Albert L. Moses and Charles M. Corlett, for appellant.
S.D. Crump and G.D. Bardwell, for appellees.
This is a suit by the appellees, the Scotts, against Maben, to recover damages for the detention of certain personal property. It was not begun by an action technically in replevin to recover the property or its value. The complaint alleged the taking by Maben, the detention of the goods, with a statement of the value of the rents and profits, and a demand for judgment for these profits and this value. The complaint was inartifically drawn, and it is difficult to determine whether an action in replevin, in detinue, trespass for the taking, or trover for the conversion, was intended for it lacks some of the essential features of any one of these suits. It is not our purpose to intimate what would have been the appropriate form. We do not pass on the sufficiency of the pleading, nor determine when and under what circumstances either one of these actions will lie, nor whether what the plaintiffs state would enable them to recover in the form which they have selected. As we look at it, they failed to make out a case on which they were entitled to judgment, and the appeal will be disposed of on this general basis.
The Scotts allege that they were the owners of a portable sawmill, consisting of an engine and boiler, with its appurtenances, in the shape of gauges, belts, valves, saws mandrils, a lot of logs, lumber trucks, and various other tools connected with the mill. It was located in the woods on Deep creek, where it was set up in the year 1892, having been shipped from Delta the preceding August. It was operated by one of the owners until the spring of 1893, and possibly during a part of the fall of that year. The parties then left it as it stood, went to another part of the state, and remained away until 1895 or 1896, when this suit was begun. It was charged that in June, 1895, some two years after the mill had been put up, Maben took possession of it, and detained it from their possession up to the time the suit was brought. There was no allegation of a demand, though whether this was or was not necessary we leave undetermined, because the case as made does not present enough facts upon which we can determine whether the plaintiffs ought to have made one. The defendant answered denied the taking; denied possession and the detention; and averred that it was never in his control or custody, and that he never had anything to do with it; and set up his connection with the property. These allegations were supported by the evidence of one Osgood, who came to the defendant, and suggested that the treasurer of Mineral county was about to sell the sawmill for the nonpayment of taxes; that he wanted to buy it, but was without funds, and desired to borrow enough to enable him to bid it in. Maben assented to the request, and promised Osgood that he would furnish the money necessary to pay the bid, and told him to have the certificate issued in his name, and he would hold it as security for the payment of the money thus advanced. This was done. The treasurer sold the property, Osgood bid it in, ordered the certificate made out in Maben's name, and told the treasurer to go to Maben and get his money, which he did. When this was done, Osgood took possession of the property, fixed it up, and put it in shape to run, and afterwards operated it. The mill was moved from its then location, where there was no timber, to another point, where there was, and Maben advanced the money necessary for its removal, and to pay the board bills of the men while it was being operated, taking the proceeds of the lumber cut and sold to reimburse himself. The certificate was afterwards indorsed in blank, and turned over to one Mackes; Maben receiving his money, and Mackes apparently assuming his relation to the property. During the time that Maben held the certificate one Travis, who was a mortgagee by security given by the Scotts prior to all these occurrences, went, under the direction of the Scotts, to Maben to see whether he could arrange to get rid of the certificate. We are not concerned with this particular phase of the transaction, because, as we look at it, it does not bear on the matter decided, but refer to it because a good deal of stress is laid on the letters which Maben wrote to Travis in regard to it, wherein he stated that the mill would be...
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