Park v. Grady

• Decision Date: 30 January 1922
• Docket Number: 4614.
• Citation: Park v. Grady, 62 Mont. 246, 204 P. 382 (Mont. 1922)
• Parties: PARK v. GRADY.
• Court: Montana Supreme Court

204 P. 382

62 Mont. 246

PARK v. GRADY.

No. 4614.

Supreme Court of Montana

January 30, 1922

Commissioner's Opinion.

Appeal from District Court, Silver Bow County; Jos. R. Jackson Judge.

Action by Mrs. James Park against James H. Grady. Judgment for defendant, and plaintiff appeals. Affirmed.

H. S Tyvand, of Butte, for appellant.

William Meyer, of Butte, for respondent.

AYERS C.

On December 6, 1917, Mrs. James Park delivered to James H. Grady and Ethel G. Grady certain personal property, and entered into an agreement in writing, of the words and figures following:

"Conditional Bill of Sale.

Know all men by these presents: That Mrs. James Park, herein called the vendor, has this day sold to James H. Grady and Ethel G. Grady, the personal property described in the inventory hereto attached, marked Exhibit A, and hereto made a part, upon the following conditions, to wit:

The purchase of said property is to be the sum of nine thousand dollars ($9,000.00), of which the sum of four thousand dollars ($4,000.00) has been paid in cash upon the delivery of said goods and the execution of this bill of sale, and that the balance of five thousand dollars ($5,000.00) is to be payable in the sum of one hundred dollars ($100.00) or more, payable on or before the 12th day of January, 1918, and like sums of one hundred dollars ($100.00) or more payable on or before the 12th day of each and every month thereafter until the full sum of nine thousand dollars ($9,000.00) and interest, as herein provided, has been paid.

Interest at the rate of nine per cent. per annum, is to be paid on all unpaid balances, interest payable monthly.

It is further understood and agreed that the personal property herein conditionally sold and which is described in Exhibit A, attached hereto, is located in the Park Block, 217 West Park street, Butte, Montana, and possession thereof has been given to the vendees herein, but the title thereto is to remain in the vendor herein, Mrs. James Park, until the full sum of nine thousand dollars ($9,000.00) and accrued interest has been paid and said goods and chattels are not to be removed from said premises without the consent of the vendor herein.

It is further understood and agreed as a condition of said purchase that vendees are to be allowed not more than fifteen (15) days grace in the payment of the installments hereinbefore named, and that in the event of the default of the payment of any of the installments, herein named, for a period of greater than fifteen (15) days after the same shall have been payable, then the entire sum at that time remaining unpaid shall immediately become due and payable, and if the same is not thereupon immediately paid, the vendor herein may at her option retake immediate possession of said personal property and the moneys theretofore paid to said vendor by said vendees shall be retained by said vendor as rent for said goods and the use thereof, and as agreed damages for the violation of this contract.

The vendees hereby agree to insure said property in a sum not less than five thousand dollars ($5,000.00), loss payable to Mrs. James Park, as her interest may appear.

That upon the final payment as herein provided, made by or for the vendees herein to the vendor, the latter will cancel this agreement of record and the title to the property herein conditionally sold shall be absolutely vested in the said vendees.

In witness whereof, the parties hereto have hereunto set their hands this 6th day of December, 1917.

Mrs. James Park,

Vendor.

J. H. Grady,

Ethel G. Grady,

Vendee."

The Exhibit A referred to in the agreement is an itemized list of a large amount of furniture and rooming house furnishings, and designates the location of such articles in various rooms in the Park Block, but fails, as does also the agreement, to state whether the same is all of the furniture and furnishings in the building designated "Park Block."

On April 30, 1920, Mrs. Park, plaintiff below, and appellant here, filed her complaint in conversion in the district court of Silver Bow county, charging that the respondent and Ethel G. Grady, his codefendant there, who was never served with summons, had, on or about December 6, 1917, while in possession, unlawfully converted and disposed of certain personal property particularly described as follows:

"19 bedsteads, 21 bed springs, 23 bed mattresses, 94 bed sheets, 41 bedspreads, 70 pillow cases, 2 quilts, 10 tables, 16 common chairs, 72 pairs window curtains, 27 window shades, 10 rocking chairs, 15 room carpets, 11 waste baskets, 8 cuspidors, 4 folding beds, 2 dressers, 1 hall runner, 1 hall chair, 1 stair runner, 1 pair drape curtains, 1 ice box, 1 wardrobe, 14 blankets, 26 pillows, of the value of $639.60"

--and alleging that she (the plaintiff) was then, to wit, on or about December 6, 1917, the owner thereof, and entitled to the immediate possession of the same, and that she had been damaged by reason of said conversion in a sum equal to the value of said property, together with interest at the legal rate. The issues were made in the trial court by respondent's answer in the form of a general denial, and trial was had, which resulted, after the plaintiff had rested her case, in the court sustaining defendant's motion for nonsuit and entering judgment against her. This appeal was taken from the judgment and from the court's order refusing a new trial.

The basis of the motion for nonsuit, as urged in the trial court was the insufficiency of evidence, and, in addition thereto, it is also urged in this court that the complaint does not state a cause of action. The latter proposition, of course, can be raised here for the first time, for, if the complaint does not state a cause of action, no valid judgment could be entered thereon. This being an action in conversion, where damages only are recoverable, it is sufficient to allege ownership and possession or ownership and right of possession on the date the property was converted, as distinguished from on the date of the commencement of the action, as is the rule when the action is brought in replevin to recover possession of chattels. In an action in conversion, the right to damages becomes fixed as of the...