Sanford v. Gates, Townsend & Co.

Decision Date05 July 1898
Citation53 P. 749,21 Mont. 277
PartiesSANFORD v. GATES, TOWNSEND & CO. et al.
CourtMontana Supreme Court

Pemberton C.J., dissenting.

Appeal from district court, Lewis and Clarke county; H. R. Buck Judge.

Replevin by J. R. Sanford against Gates, Townsend & Co. and another. From a judgment for plaintiff, and an order denying a new trial, defendants appeal. Affirmed.

Toole & Wallace, for appellants.

T. J Walsh, for respondent.


The complaint alleges, in substance, that the plaintiff is the owner and entitled to the possession of certain hotel furniture of the value of $649.06; that the same is unlawfully held by defendants, after demand therefor; that on October 2, 1893, plaintiff delivered the chattels in controversy to defendant Gates, Townsend & Co., a corporation, under the provisions of a contract entered into on that day between plaintiff and defendant corporation, as follows:

"Helena, Montana, Oct. 2, 1893. I have this day rented of J. R. Sanford the following described goods as per memorandum attached: For which I agree to pay him as rental $649.06 as follows, viz.: Fifty dollars on the first of each month until the whole amount of $649.06 is paid, together with interest at 1 per cent. per month on all unpaid balances; the interest to be paid monthly. And it is further expressly understood and agreed that the title to the above-described goods shall not pass to me until I have paid an amount of rental equal to $649.06, as herein provided; and that the same shall be and remain the property of the said J. R. Sanford until the same shall be fully paid. And in case I make a default in my payments, as herein provided for, or any part thereof, I hereby grant and give to said J. R. Sanford or his agent or employé the right and privilege to enter on my premises and into my house or place where the goods may be, and take possession of said goods, without process of law. In case I make default in said payments, or any part thereof, it is expressly agreed and understood that all sums paid by me prior to such default shall be, and the same is hereby, forfeited as a part of the damages sustained by said J. R. Sanford for the use of the goods belonging to said J. R. Sanford, in the event of my failure to perform the terms of this agreement. And I further agree that I will not remove the goods, or allow them to be removed, from the street and number as herein given, without the consent of the said J. R. Sanford. If so, I agree to forfeit all that has been paid on them, and return the goods to J. R. Sanford or his agent. When the amount herein specified shall have been fully paid, with interest as agreed upon, then the said J. R. Sanford shall, if required, give a bill of sale for the goods herein mentioned. [Signed] Gates, Townsend & Co., per A. R. Gates, Pres."
"Payments on above contract to commence in the month of January, 1894. J. R. Sanford."

That afterwards the defendant assigned to its co-defendant all its interest in the property. That on September 2, 1894, there fell due as interest $2.50, which remains unpaid, and that on October 2, 1894, the sum of $50, with further accrued interest of $2.50, became due, and was not paid. That there was due and unpaid October 4, 1894, when the complaint was filed, the sum of $55, and that the additional sum of $150 had not then matured.

The answer admits that the chattels were delivered and received in pursuance of the contract set out in the complaint. For an equitable defense defendants plead that at and before the making of said contract one Rohrbaugh was renting from defendant corporation the Grandon Hotel, and had possession of and was using the chattels as part of the furniture of the hotel under some agreement with plaintiff, the terms of which were unknown to the defendants, that Rohrbaugh was then indebted to defendant company to the extent of $1,800 or thereabouts, and was insolvent, and unable to pay any part of such debt, except by a transfer of his interest in the said chattels, and that there was then due, or to become due, from Rohrbaugh to plaintiff, the sum of $449.06,--all of which plaintiff knew; that defendant company agreed to execute a contract in writing to pay plaintiff whatever was due, or to be paid by Rohrbaugh to plaintiff for the chattels, and thus become the owner thereof; that plaintiff and Rohrbaugh conspired together to defraud and cheat the company, and to carry out their wicked purpose fraudulently represented to the said defendant that there was due and to fall due from Rohrbaugh to plaintiff the sum of $649.06, instead of the real sum of $449.06, which latter was the amount defendant of right ought to pay to obtain title to the property; that the defendant company relied upon said fraudulent and false representations, and believed them to be true, and had no information or means of information to the contrary, and that it therefore executed the contract to pay $649.06, whereas the amount should, in truth and in fact, have been $449.06. It is further averred that defendants, before the commencement of the action, had paid in full the $449.06, which was the whole amount payable by Rohrbaugh, and that by reason of the said payment they are entitled to the property. They pray that the contract pleaded in the complaint be declared void; that an accounting be had according to the agreement of the parties; that the defendants be decreed the owners and rightfully in the possession of the property; that if, on an accounting, anything be found due the plaintiff, defendants be permitted to pay the same into court, which they offer to do; and ask for general relief. No issue was made as to value. For convenience we shall, in this opinion, treat the company as the only defendant.

The defendant, upon whom rested the burden of proof, introduced evidence. Plaintiff then moved the court to direct the jury to find for plaintiff on several grounds, one being that defendant had failed to show that it had relied upon or believed the false representations made by plaintiff to it; and another being that there was no evidence that the amount due from Rohrbaugh had been paid. The motion was granted upon the first ground mentioned, a verdict returned, and a judgment signed and entered accordingly. From the judgment, and from an order refusing a new trial, defendant appeals.

With two exceptions, every material allegation of the equitable defense was prima facie, clearly established. The evidence disclosed that $12 or thereabouts were still unpaid on the contract between plaintiff and Rohrbaugh, this deficiency being occasioned by an erroneous calculation of the interest. This is one of the exceptions. The other is the allegation that the defendant believed the false representations of plaintiff, and relied upon them at the time he entered into the contract with him. The following quotations are extracts from the testimony of Gates, president and managing officer of defendant: "I was to pay for this furniture just what balance Rohrbaugh owed Sanford. Sanford said all he wanted was his pay for this furniture. I then entered into the contract sued on. Plaintiff had made out before that time and given me, a statement of Rohrbaugh's account. He said this was the amount due." Witness produced itemized bill, showing $649.06 as due from Rohrbaugh to plaintiff. "I have had this account in my possession ever since. I went to plaintiff, and told him I did not think that account was right, and I would like to see his books, as I had assumed the balance Rohrbaugh owed him. He informed me that he would not let me see the books, he did not care who he was. I had no other means of knowing, except through the statements of Rohrbaugh and Sanford, what amount was due. Question: Did you accept the statement as true, and act upon it? Answer: I accepted it under protest. I told Sanford I didn't think the account was right. I says, 'There have been other payments made.' 'Well,' says he, 'if there has been any other payments made on that account, Adam [meaning his clerk] got it. I never got it.' This was at the time he refused to permit me to look at his books." "I asked Sanford how much Rohrbaugh owed him. He said he couldn't tell until he had looked up his account. Said I, 'Did he keep up the payments?' 'Yes,' he said, 'he did promptly, very good; better than I expected.' That afternoon Sanford came to the hotel with the statement given in evidence. I looked at it, and says: 'That can't be right. You told me he kept up his payments very well.' I says, §This shows no payments made since the 1st of May,' and I says, 'Rohrbaugh told me he had kept up his payments, and that was one reason why he could not pay his rent,--he had to pay so much for furniture.' 'Well,' he says, 'if there has been anything more than that paid, Adam got it. I never got a cent.' I objected. I did not like to pay that amount. *** I said, 'Whatever is due legally, I am willing to pay; but I don't want to pay any more.' Then he said. 'You just sign this contract, and if we find there is anything wrong, or anything paid in outside of this, we will rectify it in the end.' I immediately signed the contract. Rohrbaugh had previously stated to me that there was about $400 due on it. I do not know where Rohrbaugh was at the time of this conversation with Sanford. Mr. Sanford at that time would not permit me to see his books, and insisted upon my signing the contract exactly as it was. He says, 'You sign this.' *** The statement given me originally by Sanford showed a balance of $673.97, but there was an item of interest included, amounting to $24.87, which Sanford deducted, leaving a balance of $649.06. I looked it over, and saw there was interest charged up twice, as I supposed, and Sanford made the correction."...

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