Wilson v. Davis

• Decision Date: 26 March 1940
• Docket Number: 7920.
• Parties: WILSON v. DAVIS et al.
• Court: Montana Supreme Court

103 P.2d 149

110 Mont. 356

WILSON v. DAVIS et al.

No. 7920.

Supreme Court of Montana

March 26, 1940

Rehearing Denied June 15, 1940.

Appeal from Second District Court, Silver Bow County; R. E. McHugh Judge.

Action by Mrs. Frank K. Wilson against Andrew J. Davis and others based on alleged loss of property from a conspiracy and wrongful acts of the defendants. Judgment for defendants, and plaintiff appeals.

Affirmed.

ERICKSON J., dissenting.

S. C. Ford and Sam Goza, Jr., both of Helena, J. D. Taylor, of Hamilton, E. C. Kurtz, of Missoula, and F. C. Fluent, of Butte, for appellant.

R. F. Gaines and James A. Poore, both of Butte, for respondents.

GUY C. DERRY, District Judge.

Plaintiff has appealed from the judgment of the district court directing a verdict against her. The action is based upon her alleged loss of property by reason of the alleged conspiracy and wrongful acts and conduct of the defendants.

The complaint alleges that certain real estate located in the city of Butte, and certain unnamed stocks and bonds, were transferred to her and her husband by a warranty deed and by assignments and transfers by one Elizabeth D. Baxter during her lifetime, which instruments were alleged to have been delivered to the defendant Poore for delivery to her and her husband, or to her in the event of the death of her husband. Her further contentions can best be made clear by reference to the complaint. Paragraph 10 contains this allegation: "That thereafter and on said date [previously shown to be May 5, 1930] the said defendant, Poore did prepare a deed conveying said real property to the said Frank K. Wilson and plaintiff, and did prepare necessary assignments or transfers setting over and conveying unto said Frank K. Wilson and plaintiff, stocks, bonds and other securities of the value of One Hundred Fifty Thousand Dollars ($150,000) and did transfer, convey and set over unto plaintiff, stocks and bonds and other securities of the value of Fifty Thousand Dollars ($50,000.00), which said deed was thereupon duly executed by the said Elizabeth D. Baxter and delivered to the said defendant, Poore, and the said assignments and transfers of the said stocks, bonds, and other securities, together with said deed were delivered to the said defendant, Poore, to be delivered by said Poore to the said Frank K. Wilson and plaintiff, or in the event of the death of said Frank K. Wilson to deliver the same to plaintiff, when the estate of the said James Hamilton was closed by appropriate judicial proceedings, or upon the death of the said Elizabeth D. Baxter."

It is further alleged that Frank K. Wilson died on the 1st day of September, 1932, and the plaintiff became and was entitled to receive from defendant Poore the deed in question, together with the stocks and bonds alleged to have been assigned and transferred. In another paragraph it is alleged that Poore has wilfully and wrongfully failed, neglected and refused, and does now so fail, neglect and refuse to make delivery of said deed and said assignment and transfers to plaintiff, and that the defendant Davis, well knowing that the assignments and transfers of said stocks, bonds and other securities had been made, refused and neglected to make delivery of said stocks and bonds to the said Frank K. Wilson and this plaintiff, and plaintiff alleges on information and belief, that said deed, assignments and transfers aforesaid, were, by said Poore, destroyed. It is further alleged that the defendants, by their representations that the property would be delivered to her, lulled her into a sense of security, and that she did not know until she was advised by other persons, on or about the 5th day of July, 1937, that the hotel and other property in the estate of Elizabeth D. Baxter had been distributed nearly two years prior thereto. As a result, she alleges that she has been deprived of her rights and interest in the property in question, of the value of $300,000, for which sum she demands damages, together with a like sum claimed as exemplary damages. This action was filed September 25, 1937. Mrs. Baxter died February 23, 1931.

The question to be here determined is whether any competent evidence was given at the trial which is sufficient in law to go to the jury for their determination as to whether the allegations of the complaint have been proved, or from which such proof may be inferred, having in mind the well-established rule that upon a motion for directed verdict the evidence must be viewed from the standpoint most favorable to the plaintiff and that every fact must be deemed proved which the evidence tends to prove. Staff v. Montana Petroleum Co., 88 Mont. 145, 291 P. 1042.

To prove the execution and delivery of the deed and of the assignment of the stocks and bonds in question, plaintiff testified to statements alleged to have been made to her by Mrs. Baxter during her lifetime. She also produced witnesses who testified to statements alleged to have been made by Mrs. Baxter, to the effect that she intended to "provide for" the Wilsons, or had "left" them this hotel and other property. None of that testimony by other witnesses tends to corroborate Mrs. Wilson's testimony about deeds and assignments, as it is at least equally susceptible to indicate the execution of a will. All of these declarations, in so far as they relate to the gift of property to the plaintiff, were allegedly made subsequent to the alleged execution of the deed in question and the alleged assignment of the stocks and bonds. The deed and assignment were not offered in evidence, and no evidence of their contents was given. The proof supporting the allegation of a gift consists solely of her statements as to what she had done in regard to the property theretofore. The only testimony tending to prove execution and delivery of the deed and transfer of the stocks and bonds, was that given by the plaintiff. Nothing of probative value was added by any other witness. The following quotations from her testimony, received over objection that it was hearsay, give her evidence to prove there had been an actual transfer and delivery:

"I went into her room and she said, 'Mrs. Wilson, I have everything taken care of now and Mr. Poore has the papers. I had given you and Mr. Wilson the Butte Hotel property and $150,000.00."'

"I went into her room and she said, 'Mrs. Wilson. I have everything taken care of, I have given you and Mr. Wilson the Butte Hotel property jointly in a deed of escrow and stocks and bonds amounting to $150,000, and you $50,000 the same as I have Mrs. Stahl,' and she says, 'I am very tired because,' she says, 'there was so much after I have given those and I made a will after that.' She told me she had given the deed which she had executed to the hotel property and stocks, and they were in Mr. Poore's possession."

Questioned as to why Mrs. Baxter did not deliver the deed and stock certificates and bonds to her and Mr. Wilson at that time, she answered as follows: "She said she could not give them to us at the present time as the estate would have to be probated. She said that the deed and stocks and bonds would be delivered to me as soon as the estate was distributed."

Are such declarations, as here shown, competent evidence to establish the actual transfer, and were they properly received in evidence? It is wholly unnecessary to consider whether a conspiracy had been established until it is first determined whether any transfer was made. It is a general and well-established principle of law that, where persons are sued for a civil wrong, it is the civil wrong resulting in damage, and not the conspiracy which constitutes the cause of action. A conspiracy is not the subject of a civil action unless it results in damage to the party complaining. 5 Cal.Jur. 528; Mining Securities Co. v. Wall, 99 Mont. 596, 45 P.2d 302-304.

The action was brought by the plaintiff on the premise that a written transfer of the real and personal property in question had been made by Mrs. Baxter to the plaintiff. Indeed, this would seem to be the only possible basis for her action. As to the realty, under section 6859, Revised Codes of 1935, the transfer could only be effected by operation of law, or by an instrument in writing subscribed by Mrs. Baxter, or by her agent authorized in writing. And it is difficult to see how an effective gift of stocks and bonds held in an estate could be made verbally by an heir at law.

As shown by her complaint, plaintiff's action was based upon the theory that the transfers were actually made and had been lost or destroyed, or were in the possession of defendant Poore, who refused to deliver them. Only the contents of a document can prove that it constitutes a transfer, for a statute requiring a transfer to be in writing is nullified for all practical purposes if the only proof necessary is the parol statement of someone's conclusion that a written conveyance was made. And under our Code sections 10516, 10585 and 10586, there can be no evidence of the contents of a writing other than the writing itself, unless the original has been lost or destroyed, in which case the proof of loss or destruction must first be made, or, as further applicable to this case, unless the original is in the possession of the party against whom the evidence is offered and he fails to produce it after reasonable notice. Here there was no proof of the loss or destruction of the deed or transfers of stocks and bonds, so as to permit other evidence of their contents. And obviously, under section 10516, no demand upon Mr. Poore to produce them at the trial in May, 1938, can be effectual as a foundation for such evidence until it has first been shown by evidence that "the original is in the possession"...