Marcante v. Hein

• Decision Date: 19 April 1937
• Docket Number: 1998
• Citation: 51 Wyo. 389,67 P.2d 196
• Parties: MARCANTE, ET AL. v. HEIN
• Court: Wyoming Supreme Court

67 P.2d 196

51 Wyo. 389

MARCANTE, ET AL. v. HEIN

No. 1998

Supreme Court of Wyoming

April 19, 1937

ERROR to the District Court of Lincoln County; V. J. TIDBALL Judge.

Action by Henry Hein, sole trader, doing business under the firm name and style of Table Supply, against Angelo Molinar and another, wherein defendants filed a cross-petition, and wherein Minnie Molinar Marcante and another were substituted for named defendants as his executors, on revival of the action at named defendant's death. To review a judgment for plaintiff, defendants bring error.

Reversed and remanded.

For the plaintiffs in error there was a brief and oral argument by W A. Muir of Rock Springs.

This is an action in replevin in which the plaintiff attempted to set forth an action in trover and also on the case. Plaintiff seeks to recover possession of personal property mortgaged to another, who died after the suit was filed, and to recover on various grounds damages for loss of earnings and injury to the reputation of his business, also punitive damages alleged for outrage, malice, fraud, oppression and collusion. The jury allowed damages to plaintiff which are not recoverable in this action or alleged in plaintiffs' petition. Delfelder v. Bank, 38 Wyo. 481. There had been no presentation of a claim against the administrator of the deceased defendant and no presentation was alleged. The point may be raised for the first time in the appellate court. Fisher v. Hopkins, et al., 4 Wyo. 379. No damages should be allowed, if it appears from the evidence adduced that mortgagee acted in good faith. There is no evidence in the case at bar that Ernest Molinar acted in bad faith, and there is evidence to show that he had sufficient cause to believe that the security was unsafe and insufficient at the time he demanded possession of the mortgaged property. Kester v. Wagner, 22 Wyo. 513, 519, also 521. A court is justified in vacating a verdict which is not sustained by sufficient evidence. Hall Oil Co. v. Barquin, et al., 33 Wyo. 92; Wettlin v. Jones, 32 Wyo. 446. A mortgagee taking possession for insecurity must act in good faith. Sec. 71-111, R. S. 1931; 11 C. J. 555, 597. The mortgagee did not attempt to sell the property until after the maturity of the note. McInerney & Conway Finance Corp. v. Smith, 42 Wyo. 380; Sills v. Hawes, (Colo.) 59 P. 422; Woods v. Gaar, (Mich.) 53 N.W. 14. The measure of damages in trover is the value at the time of conversion, with interest, unless special damages are alleged and proven. Hogan v. Akin, (Ill.) 55 N.E. 137. The mortgagee has a right to determine for himself whether he is unsafe in his security, exercising judgment in good faith. James v. Speer, (Mont.) 220 P. 535; Robinson v. Gray, (Iowa) 23 L. R. A. 780. Damages must be established with reasonable certainty. 54 C. J. 615, 629; 17 C. J. 131; Burton v. Randall, (Kan.) 46 P. 326; Bank v. Jackson, (Okla.) 170 P. 474; Tootle v. Kent, (Okla.) 73 P. 310; Millspaugh v. First Nat. Bank of Sioux City, et al., (Iowa) 94 N.W. 262. The court erred in giving instructions numbered 10, 15 and 16. Lomax v. Walk, (Ore.) 54 P. 199. The judgment should be reversed.

For the defendant in error, there was a brief and oral argument by Louis Kabell, Jr. of Evanston, Wyoming.

The action was commenced in replevin, and upon the failure and inability to furnish bond, the property was returned to the plaintiffs in error, and the action proceeded as one for damages. The jury found that plaintiff in error, Ernest Molinar, wrongfully took possession of the mortgaged property, and also of other property and the entire business, and greatly damaged the business by his malicious, oppressive and fraudulent acts. Defendant submits that the petition was aided by the trial and verdict, Claughton v. Johnson, 41 P.2d 527, and it should be liberally construed. Coal Company v. Hauf, 109 P. 21; Jones v. Parker, (Wyo.) 273 P. 687; Brokaw v. Bank, (Wyo.) 261 P. 905; Lusk Lumber Company v. Independent Producers Consolidated, (Wyo.) 252 P. 1029; C. B. & Q. R. Co. v. Simpson Bros., 151 P. 902; Grover Irrigation Company v. Ditch Company, (Wyo.) 131 P. 43,; 49 C. J. 863; Baden v. Bertenshaw, (Kans.) 74 P. 639; Ryndak v. Seawell, (Okla.) 76 P. 170; Metropolitan Life Insurance Company v. Keith, (Okla.) 41 P. 121. No exceptions were taken to the giving of any instruction except those numbered 10, 15 and 16. The verdict was justified by instruction numbered 9 given by the court, to which no exception was taken. The appellate court will not interfere where the evidence is conflicting. Kester v. Wagner, 22 Wyo. 613. The authorities cited by plaintiff in error seem to be wholly unlike the present case on the facts. The mortgagee took possession of property other than that mortgaged and also took possession of the business. He was therefore guilty of conversion and exemplary damages were proper. 65 C. J. 131; 1 C. J. 236, 241, also 252. There is no provision in the Wyoming statutes requiring itemization or special classification of damages. Therefore none was necessary here. 17 C. J. 1083. No exception was taken to the verdict. Foster v. Company, 36 Wyo. 436; Prentice v. Zumwalt, (Calif.) 13 P.2d 379.

RINER, Justice. BLUME, Ch. J., and KIMBALL, J., concur.

OPINION

RINER, Justice.

This proceeding in error was instituted to review the record and judgment of the district court of Lincoln County in a case wherein Henry Hein, doing business under the firm name of Table Supply, was plaintiff and Angelo Molinar and Ernest Molinar were defendants. The action was one in replevin and for damages.

Summarized the facts out of which the litigation arose are these: Hein on the 23rd day of September, 1932, was engaged in the retail grocery and meat business in the town of Kemmerer, Wyoming, and Angelo Molinar and Ernest Molinar were conducting a wholesale grocery business under the name of "A. Molinar Wholesale Company," in the same town. On that date, being indebted to Angelo Molinar in the sum of $ 1174.40 on account of merchandise supplied to him by the wholesale dealers aforesaid, Hein gave to Angelo Molinar a chattel mortgage on all his "stock of groceries, meats, merchandise, goods and wares" used and kept in his business aforesaid. Permission to sell portions of these goods, replacing them with other property of like character, was accorded the mortgagor under the terms of the mortgage, and that instrument, among other things, provided that if the mortgagee, his heirs or executors should deem the security unsafe or insufficient, it should be lawful for them "to declare the principal sum hereby secured, with interest thereon, or any part of such principal or interest then unpaid, at once due and payable, anything herein or in said note to the contrary notwithstanding, and to enter into and upon any place and take immediate and full possession of the whole of said property, goods and chattels to his or their own use, and sell the same according to law, for the best price that can be obtained, and out of the money arising therefrom to pay said sums of money and all interest due thereon, and expenses of keeping and caring for said property from the time of taking possession during such reasonable time as may be necessary to advertise and sell the same, and the charges and expenses of such sale, rendering and paying the surplus, if any, to the said vendor, his heirs, executors or assigns." This mortgage was duly filed for record in the County Clerk's office of Lincoln County, Wyoming. The instrument was given as security for the payment by Hein to Angelo Molinar, his heirs or assigns of the sum of money above mentioned, as evidenced by a promissory note for that amount, due in six months after September 23, 1932, with interest at six per cent per annum until paid. There had been paid by the mortgagor on this obligation prior to January 28, 1933, the sum of $ 140.00.

Theretofore, and on December 4, 1929, Hein had mortgaged the fixtures, furniture and equipment belonging to him and used in his store to the First National Bank of Kemmerer, to secure the payment of a loan from that institution, evidenced by a promissory note for $ 2800.00. The amount of this indebtedness appears to have been gradually reduced, for in 1932, and it would seem prior thereto, the mortgagor allowed the cashier of the bank aforesaid, who bought his groceries at Hein's store, to apply the amounts due on that account on the note owed by Hein to the bank. During the latter part of the year 1932 and the following month of January and during the period the chattel mortgage to Angelo Molinar was in force, payments in this manner had been made, on December 20, 1932, $ 56.47 and on January 12, 1933, $ 46.80, which were applied on this indebtedness to the bank. Its cashier testified that he had paid on this obligation in this manner the sum of $ 1008.00. On January 28, 1933, the plaintiff, as a witness in his own behalf, stated that he owed the bank the sum of $ 1338.00. Obligations held by others against Hein seem to have been paid in similar fashion.

It appears also that Hein failed to pay the taxes due the county for the year 1932 on this stock of merchandise; that he owed on January 28, 1933, five or six months' rent on his store premises; that he also was in arrears in his payments for water, heat and light, used in connection with his place of business, to the extent of about $ 1200.00 and that this bill had been increasing in amount.

On January 28, 1933, Ernest Molinar, as agent for Angelo Molinar, in the presence of the sheriff of Lincoln County in Hein's place of business demanded that Hein pay the amount due on the chattel mortgage above described. After some fruitless efforts during the course of the day on the part of the debtor to raise the...