Pederson v. Thoeny
| Decision Date | 27 December 1930 |
| Docket Number | 6715. |
| Citation | 295 P. 250,88 Mont. 569 |
| Parties | PEDERSON v. THOENY et al. |
| Court | Montana Supreme Court |
Rehearing Denied Jan. 19, 1931.
Appeal from District Court, Valley County; C. B. Elwell, Presiding Judge.
Action by Ed M. Pederson against Alice M. Thoeny and others. From the judgment and from an order granting a motion for a new trial, plaintiff appeals.
Order granting new trial affirmed.
Hurd & Hallett, of Glasgow, for appellant.
James T. Shea and Kline, McKellar & Borton, all of Glasgow, for respondents.
This is an action to recover damages for the conversion of a motortruck and an undivided one-half interest in six head of cattle. The jury found in favor of plaintiff and against the defendants Ben Olson, Alice M. and J. M. Thoeny. The Honorable S.E. Paul, judge of the Twentieth judicial district, presided at the trial. Affidavit of disqualification was thereafter filed against him, and the Honorable C. B. Elwell, judge of the Eighteenth district, was called in to hear the motion for new trial. A new trial was granted. Plaintiff appealed from the judgment and from the order granting the motion.
The acts of the defendants Thoeny and Ben Olson, as sheriff of Valley county, which plaintiff asserts amount to conversion were committed by them in the process of foreclosing a chattel mortgage given by plaintiff to Alice M. Thoeny, dated September 13, 1928. Plaintiff bases his right of recovery upon the ground that the chattel mortgage was void because executed through fear, duress and undue influence. The evidence took a wide range. As the trial progressed it took the form of an action for accounting.
The record discloses the following facts: In April, 1926 plaintiff leased a farm from J. M. Thoeny for a period of five years. On October 18, 1927, plaintiff purchased a motortruck from the Lee Motor Company, giving as security for deferred payments of $1,622.30 a conditional sales contract on the truck, and a chattel mortgage on 3,000 bushels of wheat in the granary on the Thoeny farm. Plaintiff owed E. A Townsend some money as the purchase price of certain horses, and Townsend commenced action against him and attached the truck and wheat and took up the mortgage and bill of sale given to the Lee Motor Company. Plaintiff did not dispute this indebtedness. Defendant Thoeny paid $1,311.93 to Townsend to secure the release of the attachment in the action brought by Townsend against plaintiff. On April 17, 1928, plaintiff and his wife, to evidence this indebtedness of $1,311.93 and an additional $300, made and executed a note in the sum of $1,611.93, payable to defendant Alice M. Thoeny (but for the benefit of J. M. Thoeny), and at the same time executed and delivered a chattel mortgage on all wheat in the granary on the Thoeny and Frank Brown farm, and on the mortgagors' cattle and their share of the crop to be grown in 1928, to secure the $1,611.93 note as well as future advances to be made, not exceeding $500; also at the same time plaintiff executed and delivered to J. M. Thoeny a bill of sale to the truck. The validity of this mortgage or bill of sale is not questioned. Plaintiff claimed, however, that he had not received all the credits on the mortgage to which he was entitled. On September 13, 1928, plaintiff and Attorney Clarence H. Roberts, then representing him, met defendant J. M. Thoeny and his attorney, James T. Shea, at the Thoeny store north of Hinsdale to effect a settlement of their accounts. Mrs. Thoeny was also present a part of the time. Steps had already been taken to foreclose the mortgage of April 17. For several hours they went over the accounts between plaintiff and Thoeny and arrived at a settlement of accounts, as a result of which there was written on the back of the $1,611.93 note, the following: At the same time a chattel mortgage was given by plaintiff to Alice Thoeny on the mortgagors' share of all the wheat raised on the Thoeny farm, on the motortruck, and on the mortgagors' share of cattle. The mortgage was given to secure the payment of the $1,000, balance due on the $1,611.93 note and the payment of a note in the sum of $798.70, payable to the Equity Co-operative Association of Hinsdale. The mortgage recited: "The indebtedness herein described settles all accounts to date between mortgagor and mortgagee and J. M. Thoeny to date hereof, an account stated having been arrived upon this time." The $798.70 note was one signed by plaintiff and Thoeny jointly, but represented an obligation of plaintiff. It is this mortgage that plaintiff asserts was executed through fear, duress, and undue influence, and therefore that the taking of the property thereunder in the foreclosure proceedings constituted conversion.
Much evidence was introduced showing the various transactions between plaintiff and Thoeny, plaintiff contending that he was not allowed all the credits to which he was entitled on the mortgage of April 17 or that of September 13, defendants contending otherwise. The details of this evidence need not here be recited. To show duress, fear, and undue influence respecting the execution of the mortgage of September 13 plaintiff testified: "I did not execute the mortgage under which they presumed to act as my free act and deed." He said, when it was proposed that he sign the mortgage, that he stated: "I wouldn't sign no such mortgage." He stated that Mr. Shea, counsel for J. M. Thoeny, said to him in substance that if he did not sign it, Thoeny would take possession of everything, "grain, cattle, crop and truck"; that he "could make a blind sale and drive me off from the place"; and that he was told by Mr. Shea that, if he signed the mortgage, he could have possession of the truck, otherwise not. He said he signed the mortgage believing that Thoeny would take possession of everything if he did not. This was all of the evidence tending to...
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