Young v. Bray
| Decision Date | 06 February 1918 |
| Docket Number | 3865. |
| Parties | YOUNG v. BRAY. |
| Court | Montana Supreme Court |
Appeal from District Court, Rosebud County; Charles L. Crum, Judge.
Action by Margaret Young against Montfort Bray. From a judgment for plaintiff, and an order denying new trial, defendant appeals. Reversed and remanded.
George W. Farr and H. E. Herrick, both of Miles City, for appellant.
In her complaint plaintiff alleges, in substance, that on May 23 1914, Prentiss R. Lewis executed and delivered to her his negotiable, promissory note for $150, with interest at 10 per cent. per annum, and, to secure payment, executed a chattel mortgage upon certain personal property, which mortgage was duly filed for record; that subsequently, and while the lien of the mortgage was in full force and effect, Lewis transferred the mortgaged property to defendant, who thereafter converted it to his own use and deprived plaintiff of her security; that by reason of such conversion defendant is indebted to plaintiff for the direct payment of money in the sum of $150, principal of said note, with interest according to the terms of the note; that plaintiff is entitled to a reasonable attorney fee under the terms of the note; that $100 is such reasonable fee to be allowed plaintiff; and that prior to commencing this action plaintiff demanded of defendant that he pay the amount of the mortgage upon the ground that "he had assumed said mortgage and was directly liable to this "plaintiff," but that defendant refused to pay the same or any part thereof. The answer is a general denial. Timely objection was interposed to the introduction of any evidence on the ground that the complaint fails to state a cause of action, and particularly that it fails to disclose that plaintiff is the owner or holder of the note or mortgage, or that she has any interest in the subject-matter of the litigation. The objection was overruled. Plaintiff prevailed in the lower court, and defendant appealed from the judgment and from an order denying him a new trial.
It is practically impossible to determine the theory upon which plaintiff proceeds. It is problematical whether she seeks damages for the conversion of her security, whether she waives the tort, and is suing upon an implied contract, or whether it is sought to hold defendant upon an agreement to pay the debt; but upon any theory the complaint does not state a cause of action in favor of plaintiff and against defendant.
1. It does not state a cause of action for damages for conversion. Harrington v. Stromberg-Mullins Co., 29 Mont. 157 74 P. 413.
2. It does not state a case of action upon an implied contract. The right of one, whose property has been wrongfully converted to waive the tort and sue in assumpsit is well settled. First Nat. Bank v. Silver, 45 Mont. 231, 122 P. 584. The right to sue in assumpsit proceeds upon the...
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