Stiemke v. Jankovich
| Decision Date | 13 February 1925 |
| Docket Number | 5598. |
| Citation | 233 P. 904,72 Mont. 363 |
| Parties | STIEMKE v. JANKOVICH et al. |
| Court | Montana Supreme Court |
Appeal from District Court, Yellowstone County; Lyman H. Bennett Judge.
Action by L. C. Stiemke against Milo Jankovich and another individually and as copartners under the firm name and style of Jankovich & Pekich. Judgment for plaintiff, and defendants appeal. Affirmed.
See also, 68 Mont. 60, 217 P. 650.
C. C. Rowan, of Red Lodge, for appellants.
Geo. W. Pierson, of Billings, for respondent.
The complaint herein alleges delivery by respondent to appellants, at Billings, of a player piano, under a contract by the terms of which appellants were to transport the instrument to Bearcreek and there have the use of it at a monthly rental of $50, with option to purchase at $1,250, they to keep the instrument insured for the benefit of respondent, and that, if at any time the agreement proved unsatisfactory, appellants were to return the instrument to Billings.
The complaint further alleges that appellants failed to insure, and, the agreement proving unsatisfactory, in December, 1921, appellants promised to return the piano to Billings, but failed to do so; that a demand for its return was made on January 15 or 16, 1922, but again appellants failed to return the instrument, which was thereafter, on February 14, 1922, destroyed by fire.
Appellants demurred to the complaint on the grounds: (1) That it failed to state facts sufficient to constitute a cause of action; (2) that two separate causes of action were joined in one count; (3) that the complaint was ambiguous, unintelligible, and uncertain, because of the misjoinder. They also filed motion for change of venue and supported the motion by affidavits to the effect that they were residents of Carbon county and were there served with summons, denied the agreement set out in the complaint, and set forth that the convenience of witnesses would be served by the change. The motion was denied and the demurrer overruled.
Appellants thereafter, by answer, admitted delivery, denied the right to purchase and agreement to insure, and the allegation that appellants wrongfully retained possession of the instrument, and alleged possession in respondent by the retention of the key to the money compartment of the instrument, and that the agreement was that respondent was to divide the proceeds with appellants each month. Issue was joined by reply. Thereafter appellants moved to strike certain portions of the complaint, which motion was denied.
The cause was tried to a jury. At the opening, and again when respondent rested his case, appellants moved that he be required to elect as to whether he would stand upon his alleged cause of action in contract or that sounding in tort. These motions were denied. Appellants moved for judgment of nonsuit, which motion was denied, and thereupon moved the court to instruct the jury to bring in a verdict for respondent for nominal damages only, which motion was denied. Appellants introduced testimony and both sides rested. Appellants renewed their motion to instruct, which motion was denied. Respondent then moved for a directed verdict for the value of the piano at the time it was converted, which motion was granted.
The court announced that the jury would be instructed to bring in a verdict for "the amount which they find, from a preponderance of the evidence, was the market value of this piano on the 14th day of February, 1922, not exceeding the sum of $1,250, together with interest." Appellants then requested that the issues be submitted to the jury, which request was denied.
Under the court's instruction the jury returned a verdict for respondent for $800, with interest at 8 per cent. from February 14, 1922, and judgment was entered accordingly. Appellants moved for a new trial on the ground of "newly discovered evidence." The motion was denied. Error is assigned on each of the rulings indicated and on certain rulings on the introduction of evidence, which will appear later.
1. The motion for change of the place of trial was submitted on the theory that the "contract" or agreement for the return of the piano was to be performed in Carbon county, the place of residence of appellants. Respondent filed a counter affidavit attempting to show that the contract was to be performed in Yellowstone county. Appellants moved to strike respondent's affidavit, which motion was properly denied. State ex rel. Interstate Lumber Co. v. District Court, 54 Mont. 602, 608, 172 P. 1030. The motion was disposed of on the theory presented by the respondent, that the action was on a contract or agreement to be performed in Yellowstone county. If the action can be said to be upon a contract, and it appears that the contract was to be performed in Yellowstone county, the ruling of the court was correct. Section 9096, Rev. Codes 1921; State ex rel. Interstate Lumber Co. v. District Court, supra.
This cause has heretofore been before this court, where it was held that, while there is some question as to the exact nature of the remedy, "the most satisfactory classification of this liability is * * * to put it under the fourth class of cases in conversion as arranged by Mr. Pollock, viz., 'Cases where there is not a conversion, but an action (formerly a special or innominate action on the case) lies to recover the actual damage."' Stiemke v. Jankovich, 68 Mont. 60, 217 P. 650.
It is conceded by appellants that, as a part of the original contract, they agreed that, if the arrangement proved unsatisfactory, they would return the instrument to respondent at Billings, and that they did, later, agree to return it to that place. As suggested in the above quotation, "there was not a conversion"; the original contract of hiring was rescinded, but a part of that contract was the agreement to return the instrument to Billings on such a rescission. Indeed, that duty rested upon appellants in the absence of an agreement, on a rescission of the contract. Hollingsworth v. Ruckman, decided December 27, 1924, 232 P. 180, and not yet officially reported. There was, then, a duty which, in effect, was either an implied or express contract to deliver the piano at Billings, and which was therefore to be performed in Yellowstone county. No error was committed in denying the motion.
2. On the former appeal this court held that the complaint did state facts sufficient to constitute a cause of action, which disposes of the first ground of demurrer. The other grounds set forth attack the complaint for an alleged joinder of two causes of action in one count. Even if this was the case, counsel did not invoke an available remedy. The statute enumerates the defects which may be reached by demurrer and this is not one of them. The defect can only be reached by motion. Galvin v. O'Gorman, 40 Mont. 391, 106 P. 887; Marcellus v. Wright, 51 Mont. 559, 154 P. 714; Roberts v. Sinnott, 55 Mont. 369, 177 P. 252.
3. Having answered to the complaint on March 23, 1922, on January 22, 1924, appellants moved to strike a certain portion thereof. "A motion to strike out a portion of a pleading is in fact and in substance a demurrer to that portion attacked." Bank of Commerce v. Fuqua, 11 Mont. 285, 28 P. 291, 14 L. R. A. 588, 28 Am. St. Rep. 461; State ex rel. Juckem v. District Court, 57 Mont. 315, 188 P. 137. The motion came too late and was properly denied.
4. As heretofore pointed out, the complaint stated, in a single count, a cause of action for damages for the breach of the contract to return the piano, after the contract of hiring had been rescinded by mutual consent. Appellants admitted right to possession in respondent and agreement to return. The duty to return or suffer damages for failure was fixed. "The legal duty to return being fixed, it is immaterial what prevented the return, unless it was plaintiff's own acts." Stiemke v. Jankovich, supra.
The allegations concerning an agreement to insure the piano and subsequent failure to do so were not necessary to a recovery, and should therefore be treated as surplusage and disregarded. Hoskins v. Northern P. Ry. Co., 39 Mont. 394, 102 P. 988; Cassidy v. Slemons & Booth, 41 Mont 426, 109 P. 976. In the Hoskins Case this court said:
"As the complaint was simply the basis or foundation of plaintiff's proof, if it contained allegations sufficient to enable him to introduce testimony showing a liability on the part of the defendants, and he could, in the absence of the specific allegations, rest his case without proving the particulars in which the latter were negligent, then it seems to follow that although he had made specific allegations of negligence, such allegations were immaterial, and should be disregarded."
There is but one contract stated in the complaint, and a breach thereof in one or more particulars, and under such circumstances the court cannot be said to have abused its discretion in denying a motion to compel an election. Cohen v. Clark, 44 Mont. 151, 119 P. 775.
5. Appellants' motion for nonsuit and the two motions for a directed verdict for nominal damages were directed to the alleged failure to prove the market value of the instrument as of December 28, 1921, the date of the rescission of the contract of hiring.
We have examined the evidence and...
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