Western Mining Supply Co. v. Melzner

• Decision Date: 29 October 1913
• Citation: 136 P. 44,48 Mont. 174
• Parties: WESTERN MINING SUPPLY CO. v. MELZNER ET AL.
• Court: Montana Supreme Court

136 P. 44

48 Mont. 174

WESTERN MINING SUPPLY CO. v. MELZNER ET AL.

Supreme Court of Montana

October 29, 1913

Appeal from District Court, Silver Bow County; Geo. B. Winston Judge.

Action by the Western Mining Supply Company against A. B. Melzner as administrator of John J. Quinn, deceased, and others. From an order denying plaintiff's motion for a new trial after judgment for defendants, plaintiff appeals. Affirmed.

Charles R. Leonard and Maury, Templeman & Davies, all of Butte, for appellant.

James E. Healy, of Butte, and C. M. Parr, of Hamilton, for respondents.

HOLLOWAY J.

Action in conversion. The defendants prevailed in the lower court and plaintiff has appealed from an order denying it a new trial.

Plaintiff's claim of title to the property out of which this controversy arose rests upon alleged purchases of it from the Shackleton & Whiteway Construction Company on May 29 and June 26, 1905. Defendant Parr claims the same property by virtue of his purchase of it at sheriff's sale following an attachment levied on July 8, 1905. A more detailed statement of the facts introduces the opinion on the former appeal. Western Mining Supply Co. v. Quinn, 40 Mont. 156, 105 P. 732, 28 L. R. A. (N. S.) 214, 135 Am. St. Rep. 612, 20 Ann. Cas. 173. Upon the last trial the result of the controversy was made to depend upon the answers to the inquiries: Was there a sale of the property by the Shackleton & Whiteway Construction Company to plaintiff? And, if so, was there such an immediate delivery and actual and continued change of possession as to satisfy the statute of frauds? Rev. Codes, § 6128. In our consideration of the matters we have not made any distinction between the plaintiff and its immediate predecessors.

While there are items of evidence and circumstances which might have raised a doubt in the minds of the jurors as to whether there was any sale at all by the construction company to plaintiff, we may assume that, as between the parties, there was a valid sale, and the determining question then is: Was there a delivery of possession of the property? The only persons who assumed to know what was done were Suiter, who acted for and on behalf of the construction company, and Farnham, who acted for the plaintiff. These two witnesses told the same story; and, if there was any delivery at all it occurred on June 26, 1905, and resulted from the delivery by Suiter to Farnham of the key to the warehouse which contained the balance of the property. Upon the former appeal we held that if there was such a symbolical delivery, and the construction company thereafter ceased to exercise any ownership or control, it was sufficient as against the claim of the attaching creditor. Western Mining & Supply Co. v. Quinn et al., above. Upon this trial Suiter and Farnham were required to go into details as to their transaction, and in doing so they testified that the warehouse was entered only through the office door and a basement door, the other doors fastening upon the inside, and that the basement was occupied by one Lawlor as a livery barn. Whether Farnham received a key to the basement is not made plain, but in any event, about the time of this supposed delivery, Lawlor caused a new lock to be placed upon the basement door and retained the keys to that lock. Practically all of the machinery, lumber, etc., was housed upon the floor above the livery barn and access to it had only through the office door. According to Suiter and Farnham, that office door was fastened by means of a Yale lock, and it was through the delivery of the key to that Yale lock by the construction company, acting through Suiter, to the plaintiff, acting through Farnham, that delivery was made, if made at all, on June 26, 1905. If this testimony had been accepted by the jury, a different result would have been reached; but it was not believed by the jury, and it was not uncontradicted. Lawlor and Parr each testified that there was not any Yale lock on the...