*1 23 judgment of cuted under a ordinance that the convic- void therein and is ab initio. tion entered void BOTTOMLY, MR. concurs. JUSTICE MR. JUSTICE ANGSTMAN: attained,
I agree with result but all that foregoing in the opinion. said
THE E. FENTON, Judge HONORABLE ERNEST District (sitting place CASTLES): in of MR. JUSTICE result,
I concur in but not with all that is said therein. MR. CHIEF JUSTICE HARRISON:
I opinion concur insofar as the holds Ordinance 210 Sulphur Town Springs of White void, to be null and judgment reversal of upon ground. por- As to that opinion tion of the which holds that voluntary payment of a fine does not constitute termination of the pre- action and clude conviction, a review the I dissent for that, the rеason my opinion, minority it is among view resort, courts of last majority of which hold contrary. See annotations 18 A.L.R. 74 A.L.R. and subsequent cases. COMPANY, a Corporation, RANCH
O’CONNELL Plaintiff v. GREAT FALLS LIVESTOCK COM- Appellant, Respondent. COMPANY, MISSION Defendant No. 9765. January 14, September 3, Submitted 1959. Decided 1959. (2d) Pac. *2 C. J. S. 49. Factors See § Helena, Sorenson, appel- for Stanley
Ralph Anderson, P. J. Anderson, orally. argued Ralph lant. J. Weaver, Falls, for re- & Great Blewett
Jardine, Stephenson, Falls, argued orally. Jardine, spondent. A. S. Great ADAIR: MR. JUSTICE Com- appeal by plaintiff, O’Connell Ranch
This is an jury’s judgment a entered on a pany, corporation, verdict. 1954 Northern Mon- During the week
The Facts: teenage Falls, Montana, Brian Thomas Great tana fair at state O’Connell, there met Mr. called Tom O’Connell, hereinafter manager defendant, Great Ralph. King, the president and in- Company, which time Tom Falls Livestock Commission at couple hundred King formed Mr. he and his brother had they leaving head prior of cattle which desired school that fall. Mr.
On that occasion Tom O’Connell also discussed with King the market that the would conditions and indicated shipped be to the Great Falls Livestock Commission for sale.
Later on day, King O’Connell, same Mr. Brian D. met hereinafter Brian O’Connell, called Brian that and informed his son Tom had discussed King selling eouple with Mr. of a hundred head of cattle.
Brian D. O’Connell, who president then was and is the now general manager of plaintiff, O’Connell Ranch Com- pany, when informed King Mr. of his above conversation with Tom O’Connell, quite became upset concerned and *3 King informed Tom did not Mr. O’Connell own cattle which he could sell and that he did not even own cattle brand. also King Brian informed Mr. that the cattle were delivery. all for fall contracted sale and proceeded About one week later Tom O’Connell to a ranch Company, O’Connell Ranch near Creek, situate Gold County, Montana, Powell there informed the foreman of was such ranch that it the desire of his father Brian D. O’Con- ship approximately nell to head cattle from Gold Creek Creek ranch Wolf of the O’Connell Ranch Company, Creek, situate near Wolf County, Lewis and Clark Montana. The foreman of the complied Gold Creek ranch with the direc- given ’Connell, tions so him Tom assuming they were Briаn D. being relayed the orders of to the foreman through son, Brian’s Tom O’Connell. As a result approxi- mately 185 head Company’s of O’Connell Ranch cattle were on the Railway loaded cars of the Northern Pacific at Gold Montana, Creek, shipped from there rail under a bill Mon- railway’s agent Garrison, lading made tbe at out railway Creek.
tana, being station at Gold there no that a bill of ranch foreman was informed Garrison, At already lading out for these same cattle cover- had been made Creek, Montana, to the ing transportаtion their from Gold Falls, Company at Great Great Falls Commission Livestock error, lading Montana, believing such to be bill Garrison, agent change railway while had the foreman, ranch at Creek, Montana, instead shipment to Wolf destination of the foreman the Gold on, to Great Falls. From time so loaded nothing- ranch had further to with the cattle Creek do shipped. route, passing through While the were en and while shipment Helena, Montana, changed the destination of the was Creek, Montana, Com- from Wolf to the Great Falls Livestock Company Fаlls, at mission Great Montana. Such diversion accomplished by telephone call from some unidentified was railway person company. stockyards August
On the cattle arrived at Company in Great of the Great Falls Livestock Commission graded and in- they in, were checked Montana, Falls, where inspector. brand spected Falls, Tom in Great O’Con- of the cattle Prior to the arrival King, president Mr. informed by telephone nell Tom, he, Falls Livestock Commission Great conversation, During telephone Mr. such shipping the cattle. father, O’Connell, hаd said Brian what Tom’s Eng inquired and, Mr. according King, Tom O’Con- shipment about him.” right with “It is all nell answered at the Commission Com- arrived defendant After the cattle again telephoned the defend- stockyards, Tom O’Connell pany’s directions as to how the cat- gave company ant *4 following day, August 17, the On be sold. tle should telephone directions and pursuant to such sold cattle were delivered to- Tom O’Con- of the sale was proceeds for the cheek “Byron out to the order of made This check was [sic] nell. and, oversight O’Connell” due to the and inadvertence Company, Pro- defendant Commission the Montana Livestock Ass’n, mortgage duction on Credit which held 'the the O’Con- Company cattle, payee nell Ranch was not named as a check.
Tom O’Connell accepted the check which was for sum $26,438.01 presented Helena, and Mon- same to bank tana, attempted where he to cash but in this he was unsuc- cessful. mortgagee, The Montana Livestock Credit Production Ass’n, thereafter learned of the and existence check promptly payment stopped caused to be thereon. The defendant Company Commission regained possession check issued a new payable check same amount plaintiff, Company 0 ’Connell Ranch mortgagee, the Montana Livestock Production Credit Ass’n latter which check was sub- sequently by endorsed payees, both paid. cashed and August 17, 1954,
The cattle so sold on previously had been by contracted corporation for sale at cents 18% per pound delivery with date of set between 5th 10th of October 1954.
The brought plaintiff, instant action O’Connell Company, Ranch damage resulting for loss recover to it wrongful reason of the sale of 173 head of its cattle. alleged wrongful The sale Company’s of the 173 head' of the cattle constituted the first cause action in complaint.
The second and third action causes of concerned sales the defendant Company Commission belonging certain cattle Corrigan to one and one Osborn. These were cattle owned employees certain Company Ranch which likewise had been contracted October sale and de- livery up but which had bеen and shipped rounded to Great August 17, 1954, Falls there sold on with the O’Connell Ranch resulting arising cattle. The causes of action employees alleged to these wrongful duly assigned sales been Company. had to the 0 ’Connell Ranch *5 action, of essentially The the cause issues are same in each by the raised first cause hence our consideration of the issues remaining* will for the causes. of action suffice alleg*ed defendant, Great Falls Livestock Plaintiff that the the plaintiff, Company, from the Commission without behalf, in sold 173 head plaintiff’s оne authorized to act plaintiff’s a result of such unauthorized of cattle and plaintiff damaged was as follows: sale delivery First, contract, calling in to fulfill its order 1954, days the and 10th of October sale between the 5th the 1st replace or about plaintiff was forced to such cattle on in market day 1954, increase of October and that due to the the unauthorized sale and value of cattle between the date of plaintiff replacement of the was the date the of said cattle in damaged $350. the sum of for sale and de-
Secоnd, plaintiff’s that under contract the livery the stun plaintiff in October have received per pound cattle, for the while at the unauthorized cents 18% wrongful price sale of the cattle the received was but whereby plaintiff loss pound; suffered per sum of cents totaling pound per sum of per animal one half cent loss in such the defendant de- addition to $732.48 inspection and commissions, charges, brand na- feed its ducted price from the total sale board fees and meat livestock tional cattle, unauthor- sale of which at the unаuthorized received sum $583.78 additional amounted deductions ized in damage that amount. loss and further alleged that not for the un- were complaint further The have been on feed from and sale, the cattle would authorized wrongful sale, 17, 1954, August until the date of after the calling provided plaintiff’s contract delivery date October had the al- delivery and that cattle been sale for October they gained feed would have an such continue on lowed to day during per period animal per pounds average of two wrongful such unauthorized result of sale as a direct and that sum damage suffered further loss $3,520.55. plaintiff’s complaint
In the allegations answer to above defendant, Company, Great Falls Livestock Commission alleged that all cattle sold were August 17, the full market thereof at value proceeds (less freight and that the sale of charged, charges cattle, for feed of the defendant’s commis- *6 inspection fees, sion on the sale for thereof and brand fees Board), paid the National Livestock and the Meat were plaintiff O’Connell Ranch Company and to the Pro- Montana mortgage plaintiff’s duction Credit Ass’n which held a cat- tle. plaintiff
The defendant admitted that replaced the cattle which the defendant alleged sale, had sold and the plain- that at tiff slightly received in per pound excess of 18.04 cents for alleged cattle sold. Defendant further that head of said cattle were grade sufficient quality to obtain the price full for plaintiff which had contracted the cattle alleged the fees deducted defendant were reasonable and that defendant was entitled deduсt the same sale price of specifically the cattle. Defendant further denied that wrongful. the sale was
In a separate first alleged defense the defendant that consigned cattle were to it for that request sale and at the thereof, the owners defendant sold cattle for their full mar- ket value.
In separate alleged second defense the defendant that it was operating a commission merchant under the Packers and Stockyards amended, Act of 7 U.S.C.A. section 181 seq.; et that as such commission merchant the defendant was required to sell receive and without discrimination all livestock consig-ned shipped sale; to it that, believing it au- cattle, thorized sell defendant sold the same for the full paid market value thereof and to the owners and the mortgagee cattle sold full market value therefor. replaced could alleged plaintiff Defendant further that have plaintiff; the de- the cattle sold loss to that without consigned fendant had sold cattle been to defendant which had such practice usage under cir- accordance сommon ; the full market plaintiff cumstances and that the had received value for the cattle sold. reply plaintiff specifically
In its to defendant’s answer the any pleadings, that at denied of the' mentioned times plaintiff Tom agent O’Connell was the authorized alleged affirmatively Tom was not the author- agent ized the plaintiff at of said and that times diligence, or, defendant well in the knew exercise of reasonable authority. should have known of lack Throughout cause, plaintiff de- maintained fendant wrongfully plaintiff’s sold and without The contrary cattle. sold on the maintained under authorization from con- and with sent and at plaintiff’s request. only pertain
The trial given instructions court plaintiff’s cattle were authority to sell to defendant’s 4-B, which read: 1, 4-A, Nos. instructions court’s 1. “In this action Court’s Instruction No. *7 alleges it damages which to recover
O’Connell Ranch Co. seeks by the a proximate result of sale it suffered as a direct and property plaintiff, of the cattle, of 173 head by suffered damages alleges it one Leo Osborn and which by the result of the sale proximate reason and as a direct Leo belonging to said Osborn 6 cattle defendant of head of Corrigan by E. one T. alleges it were suffered damages which 1 steer by defendant of of the sale proximate result as the Corrigan alleging further that the E. T. belonging to the said Corrigan T. have Leo and E. claims, any, if of the said Osborn plaintiff. assigned to the been of all the evidence preponderance a you find from
“If by the de that the sale these instructions in with accordance said Falls Commission Co. of the fendant Great Livestock by the by plaintiff unauthorized head of cattle owned authority, plaintiff, one either any acting or on its behalf instructions, or in actual ostensible as elsewhere defined these do, you plaintiff so to then must a return verdict you by must all preponderance determine a the evidence damages and in suf accordance with these instructions by fered as result of such unauthorized sale. you If by further find that the six the sale the defendant of head of by cattle owned said and the steer Leo Osborn by owned Corrigan the said E. T. was unauthorized said Leo Osborn T. Corrigan, acting E. or one and/or in their behalf with authority, ostensible, either or actual so1to you do if further preponderance find from a all evidence that the said Corrigan Leo Osborn E. T. have and/or assigned any or claim claims they might against which have the defendant reason of such unauthorized sale to the plaintiff herein then you damages must also determine the suffered said E. Corrigan Leo Osborn T. as a and/or amount, result of such unauthorized sale and include such or amounts, your plaintiff.” in verdict for the
Court’s Instruction 4-A. No. “You are if instructed you preponderance find from a of all in of the evidence case the defendant herein had actual notice Brian Thomas O’Connell was not owner did not have au- thority your to sell the involved, cattle here verdict must be for the damages and the should be fixed ac- cordance given, with the instructions elsewhere such sum you find a preponderance evidence plaintiff suffered.”
Court’s Instruction 4-B. No. “You that under are instructed the law it consigned the defendant must sell unless put knows or has been authority on notice that it has no you to sell the preponderance same. Unless find from evidence that defendant knew that had no *8 32 Plaintiff, by of consigned
the cattle of Plaintiff to son you your must then return verdict the defendant.” plaintiff, On has appeal the Ranch this O’Connell assigned twenty-six separate of error. specifications
Specifications 16, inclusive, assign error No. to both give plaintiff’s proposed the trial Instruc- court’s refusal to 12, dealing 2, 3, 6, 8, 10, tions é, 5, 7, 9, 10-A, Nos. agency. with the by the proposed so refused
Plaintiff’s No. Instruction agent trial that an court, reads: “You are instructed dealings represents principal is one who another called the agency. An persons. representation with third Such is called An actual when agency agency either or is is actual ostensible. agent really employed agency An is principal. ordi principal intentionally, when the or want of ostensible nary be his care, person a to another to causes third believe agent really employed by cause who is not him. In this complaint, alleged, defendant has in answer to the one that was directed to here involved sell the cattle all preponderance you If find Brian T. O’Connell. to sell said cattle directed defendant was evidence you are instructed by the Brian T. O’Connell said this action said defense to fact constitute in order for that agent, acting as an either must have been Brian T. Co.. O’Connell Ranch ostensible, for actual you instructed are further Inc., and in connection O’Connell, agent T. ostensible Brian said to constitute act or reason of some must plaintiff, part led the defendant on its have ordinary care want its agent.” T. Brian O’Connell was that said believe instruction, defendant’s above-proposed giving To objection, following viz.: made the counsel Proрosed No. Plaintiff’s Instruction giving “To the pertaining instructions follow the other and all of objects grounds and for reasons agency, Defendant *9 ques- on the in this case whatsoever that there no evidence plaintiff the proof agency. tion There was no offered of any as to defendant proof offered and there was no as far as agency involved agency, any of nor was there issue proof is concerned.” refused objections and The trial court sustained defendant’s refused court also plaintiff’s proposed Instruction No. 2. Such 10, 6, 7, 8, 9, plaintiff’s 3, 4, 5, Nos. proposed Instructions 12, question 10-A, dealing each and all with the in the agency. are proposed These instructions so refused transcript in files on of the clerk of the district court and appeal supreme in court filed the office of the clerk of the hence, record appeal on this we shall not further incumber the by recopying opinion. them this pleadings support
Under the proof herein and the offered trial, thereof at the on we deem the trial court’s instructions question agency, authority and defendant’s claimed selling the cattle, inadequate opinion and are of the prejudicial that it was error for the trial court to sustain de- Nos. objections plaintiff’s offered Instructions fendant’s to 10, 10-A, 3, 4, 5, 6, 7, 8, 9, and to refuse to designated give opinion, same. In offered instruc- our correctly question agency upon tions state the law on not is founded. We do hold all which case given, agency on should have been but the offered instructions given proper adequate more trial should have one or court authority agency repre- as to the instructions the law plaintiff corporation. sent the urges conversion, a suit for
The defendant this is but so it. we do not view defendant,
The real was whether or Great Company, right Falls had the Livestock Commission consigned which had been to defendant’s stockyards. right, plaintiff If defendant had that has no cause against of action it. On the other hand if defendant did not loss to have suffered right have such is shown is entitled cattle, its an unauthorized sale of together the law case, and to its entire with redress have applicable presented jury for its consideration. thereto person tending Plaintiff introduced to show that no evidence Company had Ranch O’Connell the de- cattle, ever while authorized defendant sell the alleged fendant sale was with consent Company. Ranch Next, alleged if alternatively, that even owner,
the sale was the consent the O’Con without nell Company, Ranch of the fact that defendant reason is incorporated *10 provisions under the the Packers Stock yards Act that for any liability defendant was loss free from or damage resulting through an sale to unauthorized for the reason that selling a immune agent as defendant was from liability. It quite agency is thus that became apparent prime importance was a fact of in this case. strongly upon relies to free from
What the defendant Packers and liability immunity under the is its defense of Stockyards holding the that Act. Defendant here contends Missoula of this Meat Helena v. Live- court Montana Co. of grants 955, Co., (2d) 230 Pac. stock Auction 125 Mont. immunity liability defendant, stockyard, the as a opinion that and direct might sales it make. not so read We do express opinion in аttention the in the court’s statement given market is not that “The livestock case to effect that immunity plaintiff.” complete asserted as a Company ease, supra, The involved sale Montana Meat mortgaged. stockyard company a had been cattle which neglected record case, however, mortgagee In that had his of marks and brands mortgage general with the recorder stockyard liable for required by in order to statute hold liability general The discusses the stock- conversion. case yards Stockyards Act and еxamines the Packers and under majority minority both the concerning view of the courts liability stockyards arising for conversion out of sales stockyards. made Company The Montana Meat case readily is distinguishable from the instant cause wherein stockyard had authority actual shipper’s notice of the lack of In fact, appeal the cattle. the defendant’s brief on this concedes that liability depends its upon not whether or put defendant knew or had been on notice that it had au- no thority to sell the again cattle. Herе we return to the issue agency.
Tom authority O’Connell’s authority or lack was and most vital issue in this cause. It essential jury be instructed as legal authority effect of the or lack of authority of Tom O’Connell. The as to whether or defendant, Great Falls Commission, Livestock had been put on notice of this lack of Tom O’Connell to order the sale of these cattle is issue in likewise vital cause, jury and the were entitled to legal be informed of the effect of this notice or lack of notice to the defendant.
The 1, supra, in effect, court’s Instruction No. told the jurors they meaning would be instructed later as to of certain subsequent terms but in no instruction were such terms defined.
Although attempted the defendant admits never any proof offer in support pleading of its of the defense that sale was authorized O’Connell Ranch shipped by cattle were the O’Connell Ranch Com- *11 pany approval, consent and still the issue of agency vitally important defense, is under such and its claim by immunity of absolute organized reason of fact that it operated provisions and under the Packers and Stoсk- yards pointed out, Act. As we have under this the law of state, upon grant the Act relied not does an absolute immu- nity stockyards any liability for wrongful a sale. question We must still determine the of whether or not the au- it had no put notice that knew or liad been deter- be thority question could not to sell the cattle. This jury proper instructions mined in this case without agency of Tom O’Connell. concerning agency or lack of suf- Nor believe that defendant’s claim do we damage disposes loss of this case. fered no or damage the value Plaintiff suffered lоss and claims gained had would have weight the additional its cattle they October, the defendant kept grazed been and until while the cattle by although sought to establish its evidence they kept until Octo gained weight been would have had than yet less was claimed gain ber would have been much damage Clearly this by plaintiff. the amount of loss by offsets jury. There are other a to be resolved by these likewise are to be and claims advanced defendant but by jury proper instructions from the court. resolved under court judgment of the district For the reasons stаted the remanded to dis- must be and is reversed and the cause proceedings incon- and further trial for a new trict court opinion. sistent with ANGSTMAN, concur. BOTTOMLY
MR. JUSTICES ALLEN: J. THE GEORGE HONORABLE No. 1 Instruction plaintiff’s Offered gave court The lower part as follows: reading in objection, without of all the evidence preponderance you find from “If de- instructions that the sale these in accordance with Co. of the said Commission Falls Livestock fendant Great by the plaintiff was unauthorized owned head of cattle authority, either its behalf with anyone acting on plaintiff, defined in these instruсtions as elsewhere or ostensible actual a verdict for the you must return do, toso all the evidence preponderance you must determine damages suffered instructions with these in accordance sale.” such unauthorized a result of plaintiff *12 the case of are the law of the court The instructions incorrect. or jury correct whether must be followed Castles Mr. Justice of agree I with the view "While involved, be agency should question of dissent, in his that no agency into injected having the lower court upon incumbent then became сase, the instructions guide proper definitions through with the court to follow This the given. the instruction jury application in its court did not do. majority by the
Therefore, I in the result reached concur given. herein opinion, but for the reason (dissenting). MR. JUSTICE CASTLES: some of majority opinion hardly recognizes I dissent. The record, good will be served pertinent facts but no under attempt correctly here because by an to recite them even jury majority opinion, the recitation of the verdict judgment should be affirmed. agent T. Brian as agency of question of the No in the at all. Company is involved case Ranch 0 ’Connell anything. The instruc- if it conversion is one of The case nothing majority opinion have to do in the referred to tions rejected. properly and were the issues Livestock Helena v. Missoula Meat Montana controlling (2d) 955, is 66, 230 Pac. 125 Mont. Co., Auction properly instructed without ob- jury was and the case, in the two instructions which were in the issue jection as to follows: that under 4-B. “You are instructed Instruction
Court’s consigned it unless must sell the defendant the law authority that it has no put on notice or has been it knows yоu preponderance find from same. Unless sell the no had defendant knew evidence Plaintiff, consigned to it son of Plaintiff the cattle your for the defendant.” verdict you must return then Court’s Instruction No. 4-A. “You are if instructed that you preponderance find from a of all of the in this evidence ease that the defendant herein had actual notice that Brian Thomas O’Connell the owner did not have au- thority to sell the involved, cattle here your must verdict *13 be for the plaintiff and the damages should be fixed ac- cordance with the instructions given, elsewhere in such sum as you find from preponderance plain- the evidence that the ’’ tiff suffered. year
Seventeen old son Tom gave plaintiff’s orders to the foreman, ranch the Railway Company, defendant, and the each of them following the jury orders. The all heard the evidence and under previously quoted instructions chose to believe the evidence of the defendant.
A second reason apparent why judgment should be affirmed. Under proper instructions, given, jury might well have found no damages by plaintiff; sustained received full market value for cattle; and it received a higher price price than its contract cattle covered majority opinion ignores The contract. using this fact average price, covering an contract cattle and inferior cattle shipment. appears included It further shipment, foreman authorized the and the defendant re- quired by consignee law as to receive and feed the cattle. charged The defendant cannot be expense with this as dam- ages any theory. under briefly
The writer has indicated, going detail, without into grounds jury two on which the judgment verdict and should be affirmed and dissents from majority view any questions agency instructions are or should be involved.