Wettlin v. Jones
| Decision Date | 31 March 1925 |
| Docket Number | 1175 |
| Citation | 234 P. 515,32 Wyo. 446 |
| Parties | WETTLIN ET AL v. JONES ET AL [*] |
| Court | Wyoming Supreme Court |
Rehearing Denied 32 Wyo. 446 at 459.
APPEAL from District Court, Fremont County; CYRUS O. BROWN, Judge.
Action by Herbert J. Wettlin and another against Squier Jones and another. There was judgment for plaintiffs and defendants appeal.
Affirmed. Motion Denied.
B. S Cromer, A. C. Allen, John Dillon and G. J. Christie for appellants.
Defendant Jones was not an agent of respondents and under no obligation to give them notice other than what is required by the mortgage, 19 R. C. L. 603. The mortgage was legally foreclosed, 4629-31 C. S. An act which if committed by a single person is also lawful if committed by a combination 12 C. J. 582. A conspiracy is a combination between two or more persons to do an unlawful act, or a lawful act by unlawful means, 12 C. J. 541; no conspiracy can exist where two or more persons combine to do a lawful act in a lawful manner. The foreclosure notice was published in a paper of general circulation in Fremont County. No notice other than as required by law or contained in the instrument was necessary; a lawful act is lawful no matter how many unite to do it; Trans. Co. v. Standard Oil Co., 56 L. R. A. 804; what one may do lawfully two or more may join in doing, R. R. Co. v. Schaffer, 62 L. R. A. 934; Cleveland v. Anderson, 5 L. R. A. (N. S. 136); 18 L. R. A. (N. S.) 704; to sustain an action for conspiracy there must be allegations and proof of an act, which if done by one alone would at common law constitute an action on the case; Sleeper v. Baker, 39 L. R. A. (N. S.) 464; 64 L. R. A. 260. The burden was on plaintiffs to prove a combination to do an unlawful act, or a lawful act by unlawful means resulting in damage to plaintiffs, 12 C. J. 632.
M. C. Burk for respondents.
There was no authority to foreclose before maturity of the debt. Both Jones and Vollmer were liable for conversion; in action for conspiracy, the damage is the gist of the action, 5 R. C. L. 1091; 3 Encyc. Ev. 407. Proof of conspiracy is generally circumstantial, slight evidence of collusion is sufficient, 3 Encyc. Ev. 427; a mortgagee exercising power of sale must act in good faith; an unlawful foreclosure is conversion creating liability for damages equal to value of property at the time of conversion, 5 R. C. L. 462-68; less the mortgage debt with interest to date of judgment, 4 Suth. Dam. 4214. Assignee of lease who assumes the covenants is responsible for breach, 4 Page on Conts. 4006; Woodland Oil Co. v. Crawford, 55 O. St. 161, 34 L. R. A. 62; if assignee fails to perform the adverse party may enforce the original contract. The evidence amply sustains the judgment and findings. Jones was a trespasser and the sale of the property constituted conversion.
B. S. Cromer, A. C. Allen, John Dillon and G. J. Christie in reply.
The evidence established publication in a newspaper of general circulation. The burden of proof was on plaintiff, 12 C. J. 630. The note was payable in installments; the notation as to monthly payments being in writing, 3950 C. S. Mortgagors made default and foreclosure was not a trespass, 11 C. J. p. 556; 11 Cyc. 697; Fleming v. Thorpe, 19 L. R. A. 915; Clark v. Baker, 9 P. 911; Maddox v. Wyman, 28 P. 838. When property is subject to a lien in favor of defendant tender of the amount due the lien holder is necessary before bringing action of trover; 26 R. C. L. 1129; Mullen v. Quinlan, 24 L. R. A. (N. S.) 511; this plaintiffs failed to do. There was default of the note and the foreclosure notice was in accordance with the statute; 4712 C. S. It was unnecessary for notice to state that mortgagee felt unsafe or insecure, 11 C. J. 706.
BLUME, Justice. POTTER, Ch. J., and KIMBALL, J., concur. ON MOTION FOR ASSESSMENT OF PENALTY AND ALLOWANCE OF ATTORNEY FEES: POTTER, Chief Justice. BLUME and KIMBALL, JJ., concur.
Herbert G. Wettlin and Elizabeth Wettlin, plaintiffs below and respondents here, recovered judgment for $ 3357.16 in the district court of Fremont County against Squier Jones and E. E. Vollmer, defendants below and appellants here, as damages for fraudulently depriving plaintiffs of their interest in certain personal property. The evidence on the part of plaintiffs and respondents tends to show: On August 24, 1921, respondents were the owners of certain laundry equipment in the town of Riverton, Wyoming, in good condition and of the value then and later in the year of $ 5000. On that day they executed to the appellant Squier Jones a chattel mortgage to secure the payment of a note for $ 2057.23 with interest, payable on or before April 15th, 1923, but further providing for the payment on the note of $ 100 per month beginning August 15, 1921. Said laundry equipment was located in a building owned by said Squier Jones, and a rental of $ 50.00 was then and thereafter to be paid for the use and occupation of said building. On August 25th, 1921, respondents entered into an agreement with one Louis Dudeck and Mrs. Dudeck, leasing said laundry equipment to the latter till April 1st, 1922, at an agreed rental of $ 200 per month, in addition to the rent to be paid for the use and occupation of said building, under stipulation on the part of said Dudecks to deposit in the Riverton State Bank, on the 15th of each month, the sum of $ 100 to the credit of said Jones, to meet the payments due each month on said note, and $ 100 a month for the benefit of respondents; also to pay the monthly rental of $ 50.00 for the use and occupation of said building. Shortly afterwards respondents left Wyoming for New Jersey, leaving their address, where mail would reach them, with said bank as well as at the post office at Riverton, and with an agreement on the part of Jones, as testified to by Mrs. Wettlin, but denied by Jones, to notify respondents in case the payments under the contract with the Dudecks should not be made when due. Mrs. Wettlin, according to her testimony, also had a talk with Jones before her departure as to the sale of said laundry equipment, at which time Jones suggested the name of the appellant Vollmer as a prospective purchaser.
The payment due August 15, 1921, as well as the payments due in the months of September and October, 1921, under said contracts with the Dudecks, were duly made. About November 1st, 1921, the appellant Vollmer came to Riverton and opened up negotiations with the Dudecks for the purchase of said laundry equipment through an agent, who seems to have continued as such till the completion of the purchase, and who, as some of the testimony shows, stated to the Dudecks that, unless they would sell, Vollmer would start another laundry and "freeze" them out. Vollmer, according to his testimony, made but a cursory examination of the property before taking it over, and on November 4, 1921 entered into a written agreement with the Dudecks whereby the latter turned the lease to the equipment over to Vollmer, the latter contracting to "carry out and perform all the terms and conditions" named in the lease. Jones consented to the transfer in writing. The Dudecks received no compensation for turning the equipment over, other than Vollmer's agreement to carry out the terms of the lease. The property was delivered to Vollmer on November 7, 1921. He refused to make the payments that fell due on November 15, 1921. Jones almost immediately thereafter proceeded to foreclose his mortgage, advertising the property for sale. The first notice was published on November 25, 1921. The paper selected for the publication of the notice was the Dubois Courier, published weekly at Dubois, a small country town some eighty miles or more distant from Riverton, and nearly that far from a railroad. But the paper was actually printed on the printing press of the newspaper published at Riverton. The paper so selected has a total circulation of 200 to 300, from three to five copies thereof being received by parties in Riverton. The sale was held at Riverton, pursuant to notice on December 24, 1921, and sold to Vollmer for $ 1900, he being the only bona fide bidder present. Of this amount $ 270 only was paid in cash, in order to pay $ 170 expenses incident to the sale aforesaid and $ 100 on the mortgage. Vollmer gave a note and mortgage on said equipment for the balance of the purchase price, namely, for $ 1630.00, and thereafter treated the property as his own. After the transfer of the lease by the Dudecks was made on November 4, 1921, Vollmer, upon his own suggestion, continued to carry on the business in the name of Mrs. Dudeck, as it had been theretofore conducted, even having new and necessary stationery printed in her name. The Dudecks apparently were employed by Vollmer and worked in the laundry till after the sale under the mortgage aforesaid, when one or both lost their employment. Mrs. Dudeck appears to have worried over the fact that the Wettlins had not been notified of the transfer to Vollmer. The latter, she testified, did not want them to know anything about it till he got his "hands on the lease;" that they "would find out in time." When she spoke to him about helping her write a letter, he stated that he would "take care of it," but never did. Dudeck finally wrote on January 15, 1922. Nor did Jones communicate with the Wettlins in the meantime, and made no effort to do so. But on February 1, 1922, he wrote them a letter to 1108 3rd Ave., Asbury Park, N. J., duly received by them, stating that they had never paid all their "insurance on the laundry machinery," that this would have to be taken care of at once, or suit started. A note for $ 109.65, to be signed by them, was enclosed. This letter--the only one written by Jones to the Wettlins--contained no...
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