92 P. 527 | Mont. | 1907
delivered the opinion of the court.
This action was brought to recover damages for the wrongful conversion by the defendant of seven hundred and fifty-one head of sheep, consisting of ewes and lambs, alleged to belong to plaintiff and to be of the value of $3,113. As a part of this cause of action it is alleged, further, that the ewes and lambs so taken were at the time of the conversion ranging with other ewes and lambs belonging to plaintiff in Fremont county, Idaho; that the defendant drove all of them from their accustomed range and held them for two days without food and care; that in separating those taken from the herd the defendant took many ewes, leaving their lambs, which thereafter died; that he also took many lambs, leaving their dams behind, which thereafter, having been returned to the range, wandered off in search of their lambs and were lost. It is alleged that plaintiff was damaged in this behalf to the amount of $1,000.
The answer puts in issue the title of the plaintiff, and then proceeds to justify the taking by alleging, in substance, that on December 19, 1903, the sheep in controversy belonged to one S. J. Tillman; that on that date, having become indebted to defendant in the sum of $1,500 by promissory note, the said Tillman delivered to defendant his chattel mortgage, executed according to the law of the state of Idaho, by which he hypothecated one thousand head of sheep, including the ewes described in the complaint, with their natural increase, running on the range in Fremont county, Idaho, to secure the payment of said note and interest; that the lambs mentioned in the complaint were the natural increase of these ewes; that the mortgage was duly recorded in Fremont county, Idaho, wherein said sheep then were and thereafter remained; that thereafter, on March 16, 1905, the said note, principal and interest, being due and unpaid, the defendant caused the sheriff of Fremont county, Idaho, to foreclose the mortgage for the satisfaction thereof; and that this officer having, on March 16, 1905, seized the said ■ewes and their lambs, thereafter, on March 25, 1905, sold them
By agreement of the parties the affirmative allegations of the answer were deemed denied. The trial resulted in a verdict and judgment for plaintiff. The defendant has appealed from the judgment and an order denying him a new trial.
From the evidence introduced by the plaintiff it appears that S. J. Tillman, claiming to be the owner of fifteen hundred head of sheep in charge of a herder on the range in Fremont county, Idaho, sold them to plaintiff for a consideration fixed at $5,000. Payment was to be made in the stock of plaintiff company. When the stock was issued to Tillman, which was done on December 18, 1903, he wras made the manager of the plaintiff. As it turned out afterward, Tillman only had a one-fourth interest in a herd of sheep in Fremont county, Idaho, owned jointly by him and one Sedman. After the sale to plaintiff the Tillman-Sedman partnership was dissolved and a division made of the herd. Tillman’s share amounted to three hundred and ninety-six ewes and eighteen lambs. At that time the plaintiff had a herd of about two thousand running on the same range. The Tillman sheep were turned over to the plaintiff’s herder, and the whole herd branded or marked with paint. The sale was made on November 23, 1903. Tillman’s sheep were incorporated in the company herd between the 1st and 10th of December. This was done by Tillman immediately upon dissolution of the Tillman-Sedman partnership, and the herder who bad been in charge of the partnership herd was put in charge of plaintiff’s herd.
The plaintiff having closed its case, the defendant offered in evidence the chattel mortgage and note referred to in the answer, together with the record of the proceedings of the sheriff of Fremont county, Idaho, made in conformity with the statutes of that state. Copies of the laws of Idaho, touching fraudulent transfers, and those prescribing the procedure to be pur
Counsel for defendant cite in their brief and discuss many of the decisions of this and other courts construing and applying statutes relating to fraudulent transfers of personal property, pointing out the fact that the statute of Idaho (Rev. Stats. 1887, sec. 3021) is substantially the same as our statute on the same subject (Civ. Code, sec. 4491). They insist that the evidence was competent and material, and that the question whether the requirements of the statute had been met by plaintiff and Tillman in consummating the sale should have been submitted to the jury under suitable instructions. It may be conceded, however, that the court was wrong in drawing the inference it did from the uneontroverted evidence of the plaintiff, yet, in
The judgment and order are affirmed.
0'Affirmed.