O'Sullivan v. Schultz
| Decision Date | 22 May 1899 |
| Citation | 57 P. 279,22 Mont. 541 |
| Parties | O'SULLIVAN v. SCHULTZ. |
| Court | Montana Supreme Court |
Appeal from district court, Silverbow county; John Lindsay, Judge.
Action by Morty O'Sullivan against Carrie Schultz. From a judgment for plaintiff, and an order denying a new trial defendant appeals. Affirmed.
Action in claim and delivery to recover the possession of 70 feet of granite coping and seven granite posts. The complaint is in the usual form, alleging title and right of possession in plaintiff at the time the suit was brought, a demand before suit, and a valuation of the disputed property at $282. The answer is a general denial. The material facts, about which there is no controversy, are: On April 19, 1895, plaintiff, a stonecutter by trade, entered into a contract with defendant in writing, under the terms of which he a greed to furnish her the coping and posts for a cemetery lot in which her mother was buried, at Butte, Silverbow county. The amount and dimensions of cut stone necessary were provided for, and the price fixed at $282. The work was to be completed by May 27th, "unless unforeseen causes shall prevent." The purchase price was payable on or before June 1, 1895. The contract also contains the following provision: "The title in said monument to remain in the said Morty O'Sullivan, or his assigns, with the right to take the same at any time after the whole or any part of the purchase price shall be due and unpaid; and I hereby authorize him or his assigns to enter upon the lots or premises where the same may be, and remove it therefrom, waiving all damages therefor; and, further, the above price shall be due and payable immediately upon any countermand of this order after the acceptance hereof by the said Morty O'Sullivan, or his agent, or for a willful neglect to furnish him with such information as he may desire to enable him to properly complete said work." The contract was signed by both parties. As soon as it was executed, the plaintiff employed one Gus Theriau, at the agreed price of $150, to cut the stone, according to the specifications named in the contract between plaintiff and defendant, from a quarry upon public land belonging to the United States. The plaintiff furnished Theriau with the tools necessary, and superintended the work until the stone was all cut, to see that it was done according to the contract. The defendant consulted with plaintiff from time to time during the progress of the work. Theriau was paid $30 by defendant upon the order of plaintiff as a part of his contract price. This was done before the work was completed. Theriau completed his contract during the latter part of May, and about May 27th. On June 1st or 2d Theriau brought the stone from the quarry and set it up around the lot. This was done at defendant's request. She thereupon paid him the additional sum of $150. Theriau was not authorized by plaintiff to collect any money from defendant on the contract price; but defendant, having learned from Theriau that he was doing the work for plaintiff for $150, and that he had not been paid for it by plaintiff concluded to buy the stone from him at that price. Her intention was to save the difference between the amounts paid to Theriau and the original contract price of $282. This arrangement was made and carried out between the defendant and Theriau without regard to plaintiff's rights. Thereupon defendant refused to pay plaintiff anything. So far as the proof shows, Theriau had not demanded his pay from the plaintiff. Apparently he proceeded upon the assumption that as he had not been paid in full for his work, he was at liberty to sell the stone to defendant. Defendant knew that he was employed by plaintiff to cut the stone for her, and plaintiff had shown her the work after it was done. She did not at any time notify plaintiff that she would not accept the work because it was not finished by May 27th. She stated on the trial that she did not pay plaintiff because the job was not completed by May 30th, Decoration Day, as she desired to decorate the grave of her mother on that day. Before suit was brought plaintiff demanded possession of the property of defendant, and it was refused. On the trial below the jury found for plaintiff, and fixed the value of the property at $102, evidently on the theory that the plaintiff should not recover more than the balance of the contract price. Judgment was entered for plaintiff. From this judgment, and an order overruling her motion for a new trial, defendant appeals.
Howell & Harney, for appellant.
C. P. Connolly, for respondent.
BRANTLY C.J. (after stating the facts).
1. Defendant asks that the judgment and order appealed from herein be reversed, for the reason that the proof shows that plaintiff took the stone in controversy from the public domain, but fails to show that he did so under license or permission from the government of the United States, and that, therefore, he has not made out a case upon which he is entitled to recover. He stands, defendant insists, in the attitude of one who has neither title nor right of possession but such as is founded upon his own tortious act as a trespasser upon the lands of the United States. Defendant cites,...
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