Wells-Dickey Co. v. Embody
| Decision Date | 30 April 1928 |
| Docket Number | 6284. |
| Citation | 266 P. 869,82 Mont. 150 |
| Parties | WELLS-DICKEY CO. v. EMBODY, Sheriff. |
| Court | Montana Supreme Court |
Appeal from District Court, Pondera County; John J. Greene, Judge.
Action by the Wells-Dickey Company against C. M. Embody, Sheriff of Pondera County. Judgment for defendant, and plaintiff appeals. Reversed and remanded, with direction.
Maddox & Church, of Great Falls, for appellant.
Arnot & Doyle, of Conrad, and C. A. Spaulding, of Helena, for respondent.
On motion for a rehearing, counsel for defendant have called our attention to the fact, not mentioned in their original brief and entirely overlooked by the court, that before any testimony was introduced the defendant objected to the introduction of any testimony on the ground that the complaint does not state facts sufficient to constitute a cause of action. For this reason the opinion promulgated March 29, 1928, is withdrawn, and the following opinion substituted therefor:
The plaintiff, Wells-Dickey Company, a Minnesota corporation, has appealed from a judgment entered in favor of the defendant C. M. Embody, as sheriff of Pondera county, in an action for the conversion of certain wheat claimed as the property of the plaintiff.
The facts upon which plaintiff bases its claim of title to the wheat are substantially as follows: In 1919 one Claude Scott executed and delivered to plaintiff a series of notes, for borrowed money, falling due yearly, beginning with November 4, 1919, and as security for the payment thereof, gave plaintiff a mortgage on his farm in Pondera county. The mortgage was duly recorded. It provides that, on default in payment of any one of the notes secured, the mortgagee "is authorized and empowered to take immediate possession" of the mortgaged premises and "rent the same."
Scott left the state, and on April 4, 1924, while residing in Wyoming, entered into a written contract with one O'Brien, by the terms of which the latter agreed to crop the farm for the seasons of 1924 and 1925, and under which O'Brien raised a crop in 1924, and commenced planting a crop of wheat in the spring of 1925. On April 15 of the latter year, plaintiff commenced foreclosure proceedings on its mortgage, alleging that Scott was then in default in payment of one of the series of notes, and on May 4 one Abbey, assistant manager of the O. M. Corwin Company, a corporation having charge of plaintiff's affairs in this state, went upon the land and took possession in the name and on behalf of the plaintiff, notifying O'Brien that he did so because Scott was in default under the terms of the mortgage. Abbey then entered into an agreement with O'Brien to crop the farm for the year 1925, but, instead of contracting in the name of plaintiff, did so in the name of the Corwin Company, as owner or agent for the owner of the land.
The foreclosure proceeding culminated in a sheriff's certificate of sale, issued on July 21, 1925, to plaintiff as the purchaser of the land on decretal sale. O'Brien harvested the crop in September, threshed it in October, and stored it in granaries on the land. The complaint alleges that a division was made of the wheat at the time it was stored, and a one-fourth thereof was then set apart, "subject to the order and control of the plaintiff and as its property," and that in February, 1926, the defendant wrongfully entered upon the premises, seized the wheat, sold it, and converted the proceeds to his own use.
The defendant sought to justify the taking by alleging and proving that on September 9, while the wheat was lying in the field in shocks, under and by virtue of a writ of attachment issued in an action against Scott by one of his creditors, he, as sheriff, levied upon "all of the right, title, and interest" of Scott in the wheat "by posting six copies of notice of attachment. * * *" The proof shows that, about February 1, 1926, defendant ordered O'Brien to deposit one-fourth of the crop of wheat in an elevator and have receipts therefor issued to defendant as sheriff, which order was complied with, and the wheat was thereafter sold on execution by the sheriff. Before the sale was made E. W. Heule, manager of the Corwin Company, filed a third party claim with the sheriff, asserting that the wheat was the property of the company.
The cause was tried to the court sitting without a jury, and, in rendering judgment in favor of defendant, the court merely declared that the plaintiff was not the owner of, nor entitled to the possession of, the wheat during the period from May 4, 1925, to February 1, 1926, and therefore not entitled to prevail in the action.
Plaintiff predicates error upon the making of the "findings" and the entry of judgment in favor of defendant, and asserts that its ownership of the wheat seized was established under either one of two theories: First, as the landlord's share of the crop produced after plaintiff had taken possession of the land and rented it to O'Brien pursuant to the authority granted by the mortgage contract; and, second, by virtue of the sheriff's certificate of sale issued to it on purchase of the land on foreclosure sale.
1. Before discussing the merits of the case, we will dispose of defendant's contention that plaintiff was not entitled to prevail on either theory, for the reason that the complaint does not state facts sufficient to constitute a cause of action.
This contention is in the nature of a cross-assignment of error, as the question of the sufficiency of the complaint was saved for all purposes by defendant's objection to the introduction of testimony (Boyle v. Chicago, Mil. & St. Paul Ry. Co., 60 Mont. 453, 199 P. 283), and if the court's action in overruling the objection was erroneous, the judgment should be sustained on the theory of "compensatory error," under the provisions of section 9751, Revised Codes 1921, which prohibits the reversal of a judgment upon any error complained of by the appellant, if, but for the error against the respondent, the result of the trial would have been the same. In re Murphy's Estate, 43 Mont. 353, 116 P. 1004, Ann. Cas. 1912C, 380.
The objection interposed is couched in the language of a general demurrer to a complaint, and states no reason or ground for the contention that the complaint is insufficient, and can, therefore, have no greater effect than a general demurrer to the complaint would have had; hence, in determining the question of law presented, matters of form will be disregarded, as well as allegations which are irrelevant or redundant, and if, on any view, the complaint states a cause of action this contention must be disregarded. Raymond v. Blancgrass, 36 Mont. 449, 93 P. 648, 15 L. R. A. (N. S.) 976; Cassidy v. Slemons & Booth, 41 Mont. 426, 109 P. 976.
Subdivision 2 of section 9129, Revised Codes 1921, requires the pleader to state the facts "in ordinary and concise language," so that the man on the street may know what is charged therein, and, if this is done, the complaint is impervious to a general demurrer. However, the statement must be of ultimate facts, and not conclusions of law drawn from facts by the pleader. Ridpath v. Heller, 46 Mont. 586, 129 P. 1054; Gauss v. Trump, 48 Mont. 92, 135 P. 910; Hensen v. Merton, 57 Mont. 231, 187 P. 1017.
The first attack made upon the complaint is that the allegation that Scott "was long prior to the 4th day of May, 1925, in default on the payments required by said mortgage," is but a conclusion of law. Granting that counsel is correct, this allegation is preceded in the complaint, and in the same paragraph, by the allegation, following the allegations of the execution, delivery, and recordation of the mortgage in question, that Scott "failed to make the payments required by the terms of said mortgage." A copy of the mortgage is attached to and made a part of the complaint as "Exhibit A," and it shows that the payments required fell due long prior to May 4, 1925. The allegation of failure to pay the debt when due is clearly an allegation of fact; the allegation of which complaint is made may be disregarded as redundant, and, under the rule above announced, the complaint is still sufficient to withstand the attack here made upon it.
It is next contended that the complaint insufficiently alleged the matter of renting the premises to O'Brien; counsel contending that it does not show when the lease began, or that it had begun when the crop grown upon the premises was harvested. At most, if the complaint is defective in this particular, it is but ambiguous or indefinite, defects which should have been taken advantage of by special demurrer. Allen v. Bear Creek Coal Co., 43 Mont. 269, 115 P. 673; Wheeler-Motter Merc. Co. v. Moon, 49 Mont. 307, 141 P. 665. However, paragraph 6 of the complaint alleges that the premises were "rented" to O'Brien "for a period ending December 31, 1925, under a lease providing for the delivery to the plaintiff as rental of one-fourth (1/4) of all crops raised * * * during the year 1925," and paragraph 9 alleges that "during the crop season of 1925" there were raised by O'Brien on the premises certain crops of which plaintiff was entitled to one-fourth, and therefore sufficiently alleges the fact that the crop in question was raised under the O'Brien lease to uphold the complaint as against the general attack made upon it.
The complaint alleges that "the said O. M. Corwin Company in executing said lease, was acting as agent for this plaintiff," and "that plaintiff was the person for whose sole use and benefit said lease was made," which allegations, defendant asserts, are but conclusions of law. Again conceding the point (Montana Amusement Co. v. Goldwin Distributing Corporation, 56 Mont. 215, 182 P. 119), these allegations were not...
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