Randall v. Greenhood

• Decision Date: 31 August 1880
• Parties: RANDALL, respondent, v. GREENHOOD ET AL., appellants.
• Court: Montana Supreme Court

3 Mont. 506

RANDALL, respondent,

v.GREENHOOD ET AL., appellants.

Supreme Court of the Territory of Montana.

August Term, 1880.

Appeal from First District, Gallatin County.

E. W. & J. K. TOOLE, for appellants.

Amendments allowed were inserted in the margin of the original pleading, and there was no new verification. The question of taking immediate possession was a mixed question of law and fact, partly for the court and partly for the jury, and was improper to allow in a leading question. If the question is proper in itself the court will not speculate as to the effect of its answer on the jury.

The following authorities were cited for appellants: 44 Cal. 246;40 Id. 246;39 Id. 609;14 Id. 460, 492.

VIVION & PIERCE, and CHUMASERO & CHADWICK, for respondent.

No exception was taken on the ground of want of verification of pleadings. The amendments did not affect the substantial rights of the parties.

No injury resulted from questions complained of; the matters were sufficiently proved by other evidence.

A judgment will not be reversed on account of erroneous testimony unless appellant suffered injury thereby. Moon v. Rollins, 36 Cal 333;Mott v. Reyes, 45 Id. 379;Hastings v. Jackson, 46 Id. 234.

It is for the court to say what is proper cross-examination. Rea v. Missouri, 17 Wall. 542. See, also, 22 Cal. 255;29 Id. 160;12 Id. 483;28 Id. 187, 406.

Exceptions must specify errors complained of, or they will be disregarded. Simonton v. Kelly, 1 Mon. 363;Caldwell v. Murphy, 11 N. Y. 417.

The exceptions were not taken and completed as required by statute. See Cod. Sts. (1872), § 253.

When property converted has a fixed value, the measure of damages is that value with interest from time of conversion. Hamer v. Hathaway, 33 Cal. 117;9 Id. 562;Bohm v. Dunphy, 1 Mon. 333;McGavock v. Chamberlain, 20 Ill. 219.

WADE, C. J.

This is an action to recover the value of a certain stock of goods alleged to have been wrongfully converted by appellants.

The record shows that on the 4th day of May, 1878, Messrs. Black & Daniels, merchants, doing business at Bozeman, Gallatin county, sold their stock of goods and a large amount of other property, to the respondent for the sum of $15,000, and the respondent after deducting from the sum of such purchase-money, $770, the amount he was owing them, executed his note to them, payable one day after date for the sum of $14,230, and as is alleged, took immediate possession of such goods and property.

It further appears that the appellants being creditors of Black & Daniels at the time of such sale, and on the 14th day of May, 1878, commenced an action against them and attached the goods in question, charging that the sale to respondent by Black & Daniels was fraudulent and made to hinder, delay and defraud creditors. They obtained possession of the goods by virtue of their attachment and converted the same. This action was instituted to recover the value thereof. There was a trial and verdict in favor of respondent for $3,600, and judgment thereon from which this appeal is taken.

There were many exceptions taken during the trial, and we will consider such ones as the appellants rely upon in their brief for a reversal of the judgment.

1. The record shows that the appellants, before the trial commenced, made a motion for judgment on the pleadings which was overruled, and thereafter and during the progress of the trial they asked and obtained leave to amend their answer. Whereupon the respondent asked and obtained leave to amend his replication, to the granting of which leave the appellants excepted, but for what reason the record fails to show. The exception being general, it only raises the general question as to the authority of the court to grant leave to amend pleadings during the progress of a trial. The power of the court to grant leave to either party to amend pleadings during the progress of the trial, and even after verdict and judgment in furtherance of justice, is as well settled and so deeply imbedded in the Code practice as to need no authorities to support it. We will only refer to some of the decisions of this court. See Wormall v. Reins, 1 Mon. 627;2 Id. 415.

2. The respondent, being a witness in his own behalf, was asked the following question: “State whether or not, at the time of the sale and purchase between you and Black & Daniels, you went into the immediate possession of the property and continued so?”

This question was objected to, not so much because it was leading, as because it involved a question of law improper for the witness to answer. The objection was overruled and the appellants excepted.

The question being tried was whether, at the time of the sale, the respondent openly and actually took immediate possession of the goods. In this connection the word “immediate” has no technical or special meaning. It is used in its ordinary sense in the statute.

It signifies, present, instant, not deferred by an interval of time, and the question is of the same import as if the witness had been directed to state the facts as to the transfer of the possession, and had answered that at the time the sale was made, the respondent instantly and without any interval of time went into the possession of the property.

Perhaps the form of the question suggested the answer. If this was so, and if technically and strictly the form of the question was improper, yet we cannot see how the appellants could have been injured by the inquiry.

They had the power upon cross-examination to have inquired into all the facts and circumstances attending the transfer of possession. This inquiry opened the door to such cross-examination, aided by the searching power and force of direct leading questions. It is very apparent that the appellants could not have been injured by this question and answer.

3. Z. H. Daniels, being one of the parties to the sale from Black & Daniels to respondent, testified on his examination in chief, concerning such sale and that respondent gave his note for $14,270, and took immediate possession of the goods. On cross-examination the witness was asked this question: “What was done with the note of Randall after it was given to you?” which was objected to by respondent as not cross-examination, and the objection sustained.

In cases of fraud wide latitude is given to a cross-examination. Was the sale sham and fraudulent? Was it made to hinder and delay creditors? The execution and delivery of the note had a bearing upon these questions and was competent proof tending to show the bona fides of the transaction. Did the respondent really and in good faith give his note for the purchase-price of the goods? Or was its execution a mere blind to cover up a fraudulent sale? The witness having testified in support of the sale, that the note was given, it...