Mining Securities Co. v. Wall

• Decision Date: 16 May 1935
• Docket Number: 7366.
• Parties: MINING SECURITIES CO. v. WALL et al.
• Court: Montana Supreme Court

45 P.2d 302

99 Mont. 596

MINING SECURITIES CO. v. WALL et al.

No. 7366.

Supreme Court of Montana

May 16, 1935

Appeal from District Court, Powell County; R. E. McHugh, Judge.

Action by the Mining Securities Company against Patrick Wall and wife. A demurrer to the complaint was sustained, and, from the judgment of dismissal, plaintiff appeals.

Reversed and remanded, with direction.

H. L Maury and A. G. Shone, both of Butte, for appellant.

W. J Paul, of Deer Lodge, for respondents.

MATTHEWS Justice.

The plaintiff, the Mining Securities Company, a corporation, has appealed from a judgment of dismissal entered in favor of the defendants, Patrick Wall and Mary A. Wall, after the court had sustained defendants' demurrer to plaintiff's complaint, and plaintiff had refused to plead further.

The complaint contains two causes of action, each alleging the corporate existence of the plaintiff. The first cause of action alleges: "That on or about the 22nd day of November, 1929, the said defendants, being husband and wife, conspired together to cheat and defraud the plaintiff and to embezzle, steal and appropriate moneys of the plaintiff, and pursuant to the said conspiracy and with the intent of cheating and defrauding the plaintiff and of taking its money and appropriating it to the use of both of said defendants, the said defendants, on or about the 23rd day of November, 1929, by means of a certain false, unauthorized and fraudulent check on Larabie Brothers, Bankers, payable to the order of Mary A. Wall and signed 'The Mining Securities Company by M. A. Wall' and cashed by Mary A. Wall by delivery to Larabie Brothers, Bankers, at Deer Lodge, secured possession of and then appropriated to their own use the sum of Fifteen Thousand Dollars, *** being the money of the plaintiff. That all of said money was secured against the will and against the consent of the said plaintiff. Wherefore plaintiff demands judgment against the defendants for the sum of *** $15,000.00, together with interest *** and costs."

The second cause of action is couched in similar language, except that, instead of one check issued to one of the defendants, it sets out in full a large number of checks for various sums, all alleged to be "false, unauthorized and fraudulent," issued to divers and sundry persons, firms, or corporations, "without any authority in the defendant Mary A. Wall, to issue the same." It is here alleged that "none of the said checks were issued for, or the money paid thereon, were used for the use or purpose of this plaintiff" but "for the private purposes of the said conspiring defendants, to-wit: much of the same was used for the private purposes of Patrick Wall, he well knowing that the said money was being appropriated and had been appropriated wrongfully from the plaintiff, the exact amount of said money being used for the individual purposes of the conspirators, respectively, is unknown to the plaintiff."

After setting out in full approximately 200 checks which it is alleged were cashed at the bank from plaintiff's funds, the complaint closes with the allegation: "Thereby the said defendants secured wrongfully the possession of and appropriated to their own use against the will and *** consent of the plaintiff, the moneys of the plaintiff amounting to *** $13,787.15. That no part of the same has ever been paid back to the said plaintiff."

The demurrer sustained is a joint general demurrer to each cause of action alleged. The ground urged in support of the court's ruling, and of the judgment, is that neither cause of action states facts sufficient to constitute a cause of action.

It is first contended that the allegations of the complaint do not connect the defendant Patrick Wall with any wrongful act attempted to be pleaded, except by the allegations of a conspiracy, and as to these allegations they are but conclusions of the pleader, and state no facts. What is said regarding the allegations of the conspiracy is true, but that fact alone does not render the complaint insufficient. If the complaint states a cause of action against Mary A. Wall, it is immaterial whether or not it states a cause of action against her codefendant; the joint demurrer should have been overruled. Rand v. Butte Electric Ry. Co., 40 Mont. 398, 107 P. 87; Cummings v. Reins Copper Co., 40 Mont. 599, 107 P. 904; Poe v. Sheridan County, 52 Mont. 279, 157 P. 185; Montana Auto Finance Corporation v. British & Federal Fire Underwriters, 72 Mont. 69, 232 P. 198, 36 A. L. R. 1495.

Further, a "conspiracy" is not actionable unless the combination results in the perpetration of some unlawful act or some injurious act in an otherwise lawful manner, and then the gravamen of the action is the wrong committed and not the conspiracy. Dowdell v. Carpy, 129 Cal. 168, 61 P. 948. Where all defendants named in a complaint are actors in committing the acts complained of, the allegation of conspiracy is mere surplusage, intended as a matter of aggravation, and is not necessary to support the cause of action. Mapstrick v. Ramge, 9 Neb. 390, 2 N.W. 739, 31 Am. Rep. 415; Strout v. Packard, 76 Me. 148, 156, 49 Am. Rep. 601; Laverty v. Vanarsdale, 65 Pa. 507; Verplanck v. Van Buren, 76 N.Y. 247, 259; Austin v. Barrows, 41 Conn. 287. The allegation of conspiracy becomes important only to connect a defendant with the transaction and to charge him with the acts and declarations of his coconspirators, where otherwise he would not have been implicated. Bowman v. Wohlke, 166 Cal. 121, 135 P. 37, Ann. Cas. 1915B, 1011; Cheney v. Powell, 88 Ga. 629, 15 S.E. 750; O'Connor v. Jefferson, 45 Minn. 162, 47 N.W. 538. Being mere matter of inducement, conspiracy need not be alleged with the particularity required in pleading the facts constituting the gist of the action (Barron, Boyle & Co. v. Pittsburg Plate Glass Co., 10 Ohio Dec. 114), and it seems to be the universal rule that, as to the allegation of conspiracy, the mere declaration that the defendants did "conspire together" to commit certain wrongful acts, is sufficient. Fisher v. Schuri, 73 Wis. 370, 41 N.W. 527; Moore v. Linneman, 143 Ky. 231, 136 S.W. 232; Andrew D. Meloy & Co. v. Donnelly (C. C.) 119 F. 456; Sawyer v. J. F. Wieser & Co., 37 Tex.Civ.App. 291, 84 S.W. 1101. For additional cases see 12 C.J. 629, note 96.

The plaintiff having alleged a conspiracy, entered into between the defendants named, it is immaterial that the complaint does not show that Patrick Wall took part in the wrongful acts. The allegation of conspiracy is sufficient to show privity. Cheney v. Powell, supra.

However, the facts "constituting the cause of action" must be stated in the complaint, "in ordinary and concise language" (section 9129, Rev. Codes 1921), and, in alleging such facts, "the employment of such extravagant terms as 'fraud,' 'conspiracy,' and other words of like malign import, unaccompanied by a statement of facts upon which the charges of wrongdoing rest, is a useless waste of words." Brandt v. McIntosh, 47 Mont. 70, 130 P. 413, 414.

This is an action in conversion, and, in such an action, this court has said: "We are operating under the modern reformed system of practice and pleading, and the days when hearings upon the merits may be avoided by the interposition of technicalities have fortunately gone by. The only thing that is enjoined upon a plaintiff under our Code is that he shall state the facts constituting his cause of action in ordinary and concise language." The court applied the test as to whether a layman would, without difficulty, determine from the complaint "what the facts relied upon by the plaintiff are." Carpenter v. Nelson, 41 Mont. 392, 109 P. 857, 858.

"In conversion plaintiff need go no further in his complaint than to state his title *** or his right of possession, a description of the property, and a statement of its value the acts of the defendant which deprived plaintiff of his property, and a demand for judgment for the damages sustained. 'The mode of alleging the act of conversion must depend upon the facts of the case. *** Instead of giving a narrative of all the acts performed *** it is permissible for the pleader to allege generally that the defendant converted the property to his own use. A fuller statement of the fact may be preferable, but excessive particularity is not required in the statement of the manner in which a wrong was committed, as the defendant is presumptively better informed of the facts than the adverse party, and the general rule of pleading applies that less particularity is required where the facts lie more in the knowledge of...