211 P. 222 | Mont. | 1922
delivered tbe opinion of tbe court.
Stripped of all superfluous verbiage, tbe complaint in this action states that between October 1 and November 14, 1916,
The answer of the defendant consists of certain admissions, certain denials and new matter pleaded as an affirmative defense. Considered in its entirety, the answer amounts to an admission that plaintiff delivered a certain quantity of wheat ; that defendant issued therefor the original receipt for 668 bushels; that the original receipt was surrendered; that it paid plaintiff for 445 bushels and delivered to him the new receipt for 223.20 bushels with the writing thereon as indicated above; that the period from November, 1916, to February, 1918, was a reasonable time for making an investigation; that on or about February 6, 1918, plaintiff made demand for the wheat or its value; that the demand was refused; and that defendant has never delivered the wheat to plaintiff nor paid him therefor. Defendant denied that plaintiff ever delivered more than 445 bushels of wheat represented by the original warehouse receipt, and alleged that it paid for all the wheat actually delivered to it by plaintiff; that it made an
It is contended by defendant .that the receipt was delivered conditionally and that the complaint fails to disclose that the condition had been fulfilled. Construed in the most liberal manner, the writing upon the receipt amounts to nothing more then an agreement by the terms of which plaintiff consented to permit defendant a reasonable time within which to investigate the alleged mistake. That is the only condition upon which the second receipt was delivered, and it is charged in the complaint that a reasonable time was extended to defendant to make the investigation and this is admitted by the answer.
It is contended further that the complaint fails to state that at the time this action was commenced, plaintiff was the owner or entitled to the immediate possession of the wheat represented by the second receipt; but the complaint does allege that plaintiff is the owner of the receipt itself and that defendant has failed and refused to deliver the grain or to pay for it, and this is sufficient. (Oehmen v. Portmann, 153 Mo. App. 240, 133 S. W. 104.) The owner of a warehouse receipt is prima facie the owner of the goods represented by it and entitled to the possession thereof upon surrender of the receipt and payment of the proper charges. (40 Cyc. 411; sec. 31, Chap. 93, Laws 1915, in force at the time these transactions occurred.) Although in the prayer of the complaint plaintiff demanded a return of the grain or its value, the prayer is no part of the statement of the cause of action, and if the facts alleged entitle plaintiff to any relief, the complaint is proof against a general demurrer independently of the form of the prayer. (Donovan v. McDevitt, 36 Mont. 61, 92 Pac. 49.) A warehouse receipt is more than a
The complaint does fail to allege that at the time plaintiff demanded the grain (February 6, 1918) he tendered the storage charges then due, and in this respect the complaint is defective; but it is elementary that allegations omitted from a complaint may be supplied by the answer and the defect cured. (Stephens v. Conley, 48 Mont. 352, Ann. Cas. 1915D, 958, 138 Pac. 189.) The answer denies that plaintiff ever delivered the 223.20 bushels of wheat, and in effect sets forth that he did not make such delivery, and for this reason defendant refused to account for that quantity of grain. It is apparent that defendant did not refuse to deliver the grain because of the failure of plaintiff to pay the storage charges, but because defendant claimed that plaintiff had never stored that grain with it. If this reason for defendant’s failure had been set forth in the complaint, it would have obviated the necessity for pleading a tender of the storage charges, and it is equally effective though it appears in the answer. Defendant cannot in the same breath deny that plaintiff stored the grain and insist that he allege and prove that he tendered the storage charges upon the same grain. (Anderson v. Portland Flouring Mills Co., 37 Or. 483, 82 Am. St. Rep. 771, 50 L. R. A. 235, 60 Pac. 839; Tarbell v. Farmers’ Mutual Elevator Co., 44 Minn. 471, 47 N. W. 152.)
This case was tried as one in conversion, but counsel for de fendant err. in assuming that the conversion occurred when the original receipt was surrendered and the new receipt given. Holding the grain for a reasonable time after the new receipt was given could not be wrongful because it was done by agreement of the parties or at least with the tacit consent of the plaintiff. -The conversion, if any, occurred on or about February 6, 1918, when defendant refused, after a
Error is predicated upon the refusal of the court to direct a verdict for the defendant. The record discloses that in addition to his own grain plaintiff delivered to defendant some wheat belonging to a Mrs. Gordon. The jury had to determine but a single question: Did all of the 668 bushels of wheat delivered by plaintiff to defendant, and for which the original warehouse receipt was given, actually belong to plaintiff, or did that amount include 223.20 bushels which belonged to Mrs. Gordon! Plaintiff testified positively that the 668 bushels represented his own wheat which he actually delivered to the defendant and that that amount was exclusive of the wheat which he delivered for Mrs. Gordon. On the contrary, defendant’s witness Kinley, the agent in charge of the elevator, testified that after the delivery of the original receipt, plaintiff informed him that a portion of the grain represented by that receipt belonged to Mrs. Gordon and a receipt for approximately 223.20 bushels was issued to her. Waiving aside the numerous inconsistencies which appear from the record, the utmost that can be said of the testimony in its entirety is that it presents a sharp conflict. The jury found for the plaintiff, and since there is substantial evidence to sustain the verdict, we are not authorized to set it aside entirely.. However, the verdict is excessive. Plaintiff prayed for $426.31 with interest, less the amount due defendant “as storage on said grain according to the condition on the back of said storage receipt.” The jury returned a verdict for the full amount without making any deduction for storage charges, and judgment was entered accordingly. It is manifest that when the jury found that plaintiff had actually delivered the 223.20 bushels of grain, he became liable for the storage charges computed according to the warehouse receipt which furnishes the foundation for his cause of action. .
Modified and affirmed.
