Thomas v. Mann

• Decision Date: 03 November 1913
• Docket Number: 730
• Citation: 22 Wyo. 99,135 P. 1088
• Parties: THOMAS v. MANN
• Court: Wyoming Supreme Court

135 P. 1088

22 Wyo. 99

THOMAS v. MANN

No. 730

Supreme Court of Wyoming

November 3, 1913

ERROR to the District Court, Sweetwater County; HON. DAVID H CRAIG, Judge.

The action was brought by Ed. Thomas against John R. Mann to recover the possession of certain sheep. The issues and facts are stated in the opinion.

Reversed.

T. S Taliaferro and M. E. Wilson, for plaintiff in error.

There is no evidence in the record that the alleged contract for the lease of the sheep to Mann was signed by Emily Roman or by any person having authority to represent her. The trial court overlooked the fact that the burden was upon defendant in error to establish his lien in order to establish his right of possession, and there was not sufficient evidence upon which to base a finding that the damages were $ 800. Mrs. Roman was not the administratrix of the estate of her deceased husband, and could not make a lawful contract with Mann concerning the possession of the sheep. She was in the position of a stranger to the property and had no authority to intrust the possession to defendant in error so as to give him a lien upon it. Had she entered into a contract with the defendant in error such as alleged it could be nothing more on her part than the contract of one wrongfully claiming to be the representative of a deceased person. (Est. of Hamilton, 32 Cal. 469; Pryor v. Downey, 50 Cal 388). Such a contract would not be binding upon the true representative of the estate. (Barr v. Cubbage, 52 Mo. 404; Caperton v. Ballard, 4 W.Va. 420). There is nothing in the defendant's answer to indicate a claim on his part that he came into possession of the sheep with the plaintiff's consent. Mrs. Roman was a mere intermeddler with the property of the estate of her deceased husband, in so far as she may have attempted to deal with and about the possession of the sheep. If she ever signed the contract in question, she was acting on her own account, and not as agent for the plaintiff, and hence the doctrine of ratification could have no application. (Backhaus v. Buehls, 73 P. 342). Where one having a lien does not disclose it when the owner demands the property, but claims to be himself the owner, he is estopped from setting up a lien in defense of an action by the owner to recover possession. (Sutton v Stephan, 101 Cal. 545, 36 P. 106; Brackett v. Pierson, 99 N.Y.S. 770; Hamilton v. McLaughlin, 12 N.E. 422; Shafer v. Russell, 28 Utah 444, 79 P. 559; 38 Cyc. 2019.) Upon the facts in the case the defendant was in possession of the sheep wrongfully. Claiming that they were intrusted to him by one who was a mere intermeddler with the property and asserting ownership against the plaintiff, the true owner, his act amounted to a conversion of the property, thereby estopping him from claiming a lien.

W. B. Dunton, for defendant in error.

Plaintiff in error is not in a position to raise the question that the defendant's contract was improperly admitted in evidence, for the reason that the matter was not alleged as a ground for new trial. (Dickerson v. State, 18 Wyo. 440; C. B. & Q. R. R. Co. v. Morris, 16 Wyo. 308). Again, plaintiff objected to the introduction of the contract on the sole grounds that it was not in any way connected with the case or the sheep in question, and that it did not appear to be signed by the administratrix of the estate of Evi Roman. No other grounds of objection can now be considered. (Boswell v. Bank, 16 Wyo. 161; R. R. Co. v. Rhoades, 121 P. 769). The evidence disclosed that the sheep described in the contract were those taken under the replevin writ, and that disposes of the first ground of the objection. As to the second ground the evidence disclosed that Emily Roman was the widow of Evi Roman, and that the contract was drawn up in Idaho and sent to Mann by the brother of Emily Roman; that a month or so previous to the date of the contract another brother and one Plumley were looking after the sheep and were each arrested at the ranch for some undisclosed offense and taken to the county seat by the sheriff, and at that time Mann took charge of the sheep. At or about that time also he had a conversation about taking the sheep on shares with the brother of Mrs. Roman, who afterwards sent him the contract, at which time the plaintiff, Thomas, was present; and the said brother represented himself as attending to the business for Mrs. Roman. Later Mann received the contract from Mrs. Roman's said brother, she being unable to write. He did not accept the contract immediately as he wished it for five years instead of one, but in the course of a month accepted it. But Mrs. Roman had been appointed administratrix, though the evidence failed to show that she gave bond as such, but did show that appraisers were appointed and that she acted as administratrix of the estate and was recognized by the court as such, and no other person had been appointed to administer the estate up to the time of filing suit. There was evidence also to show that Thomas had told Mann that it would be satisfactory if he took the sheep, although it is true the testimony tends to show that Mann did not show Thomas a copy of the contract, or that the latter asked to see it. In view of these facts the contract was not only admissible but was enforceable against the plaintiff, and the objection that it was not signed by the administratrix was not well taken. As the widow of the deceased co-partner who was in charge of the property at the time of his death, Mrs. Roman was the natural custodian until a lawful administrator should claim it. The failure of an administrator to give bond merely makes the appointment voidable, but it is not thereby void or subject to collateral attack. (18 Cyc. 131; Harris v. Chipman, 9 Utah, 101.) The statute provides that the order appointing an executor or administrator shall fix the time within which the bond shall be given. The order of appointment was not introduced in evidence, it appearing to have been lost from the files, and it is therefore impossible to know what time was allowed for filing the bond or taking the oath. No other administrator having been appointed the presumption would be that the time allowed for filing bond and taking oath had not expired, and hence that the appointment had not lapsed. (Comp. Stat. 1910, Sec. 5531.) Mrs. Roman, we insist, was well within her rights in acting as administratrix, but if not, since no other administrator was appointed, she was within her rights as widow having the lawful custody of her deceased husband's property. It was not her duty upon the death of her husband to let his property go to waste and be uncared for simply because no administrator had qualified. The statute recognizes the rights of heirs to deal with real property, and while the sheep as well as the ranch were included in the contract, the principle is analogous and applicable. (Comp. Stat. 1910, Secs. 5556, 5561; In re Ackens Est., 123 N.W. 187; Graves v. Davenport, 100 Colo. 429). But Thomas could not repudiate the contract and the possession under it. Had he qualified as surviving partner within the period required by statute he might possibly have set the contract aside by taking proper steps to that end. He did not do that. At the time of the replevin he had filed no bond and done no act toward qualifying as surviving partner nor had he acted as such. He lived but thirty miles away and knew Mann was in possession of and caring for the sheep; he made no attempt himself to look after them, nor to demand their possession for eight months. One cannot repudiate to another's prejudice what he has voluntarily assented to, nor contend that a contract is invalid after he has allowed another to expend labor and money under the contract, while he himself receives the benefits. (Marshall v. Foltz, 70 A. 857; Carruthers v. Whitney, 56 Wash. 327; Johnson v. Hogan, 123 N.W. 891; Mote v. Kleen, 83 Neb. 585; Lewis v. Jerome, 44 Colo. 459; McIntosh v. Ropp, 222 Pa. 606). The contract was a reasonable one.

A general denial in replevin raises every possible defense, and any facts justifying or explaining the defendant's possession is admissible in evidence under such a denial. (Dobson v. Owens, 5 Wyo. 325; 3 Bates Pl., Prac Par. & Forms, 2580). Where an amendment to a pleading might have been allowed to correspond to the facts proven, a judgment will not be disturbed because no formal amendment was made. (C. B. & Q. R. R. Co. v. Pollock, 16 Wyo. 321). The judgment is sustainable under the statute providing for an agister's lien. (Sec. 3754, Comp. Stat. 1910; Vose v. Whitney, 7 Mont. 392). It was held in the Montana case cited that the statute does not require the contract to be with the owner of the animals or his agent, and all that the agister need look into is to see that they were not stolen. We insist that the defendant had a lien for his proper charges in caring for the sheep. He demanded his pay therefor from the plaintiff who refused to give him any compensation. It was certainly never intended by the statute that a ranchman should be required to investigate the title of animals intrusted to his care. It was unjust for the plaintiff to wait until just before shearing and lambing and then take the sheep from the defendant without any compensation for the time and money expended in caring for them during several months. Against such an injustice the statute should be held to afford him absolute protection. The evidence does not bear out the contention of opposing counsel that defendant waived his lien on the sheep. Although an agister declares to the owner that he will not surrender the animals even if his charges be paid in full, it is necessary for the owner to tender the charges before bringing suit for possession. (Brown v. Holmes, 21 Kan....