206 P. 422 | Mont. | 1922
delivered the opinion of the court.
In 1917 Jesse W. Puckett purchased a Ford touring car from the local miners’ union at Klein, Montana, and, to secure the payment of the purchase price, gave a chattel mortgage upon the ear. About September 8, 1918, the balance due upon the indebtedness was paid, and on September 9 the sheriff of Musselshell county seized the car under a writ of at
Upon the trial, plaintiff, who is the son of Jesse W. Puckett, introduced testimony tending to prove that he purchased the car from his father early in April, 1918; that in consideration for the transfer he agreed to assume and pay the balance due to the union; that he took possession of the ear and used it in the taxicab business until some time in June following, when he left Musselshell county to enter the military service. It was the contention of the defendants that there never was a sale by the father to the son; that the claim of plaintiff was a mere pretense advanced to cover up the father’s property and prevent his creditors from seizing it; and that, if a sale was actually intended, it was void as against the claim of an attaching creditor.
The trial of the cause resulted in a verdict for the plaintiff for the return of the car, or for its value fixed at $150, in case return could not be had, and for $150 damages for wrongful detention. From the judgment entered thereon and from an order denying a new trial, defendants appeal.
It is contended that • there is a misjoinder of parties defendant, but, if so, that fact appeared from the face of the complaint and the objection now sought to be urged was waived by the failure to demur specially. (Sec. 9136, Rev. Codes 1921; Meredith v. Roman, 19 Mont. 204, 141 Pac. 643.)
The contention that the sale by the father to the son was ' void by reason of the fact that the car was subject to a chattel mortgage is without merit. The statute (sec. 8291, Rev. Codes 1921) which forbids the sale of mortgaged chattels
Defendants requested the court to charge the jury that, in order to constitute a valid sale as against a creditor of Jesse W. Puckett, the delivery of the car to the son must have been followed by an actual change of possession, and “that the change of possession had been continued up to the time of the alleged taking by the defendants.” The court struck out the language quoted and inserted in lieu thereof the following: “Was open and kept for such a length of time as to give general notice of the claim of the property by the plaintiff.” It is the contention of the defendants that the instruction as offered is a correct exposition of the law as declared in section 8604, Revised Codes of 1921, and that the instruction given as modified is erroneous. While it is true that a mere temporary change of possession will not avail as against the claim of a creditor of the vendor, it is not true that the change must necessarily continue until the property is seized by the creditor. It is the general rule that, to defeat the claim of the creditor of the vendor, the change of possession must be open and so long continued as to indicate to the world at large that there has been a transfer of title. (Dodge v. Jones, 7 Mont. 121, 14 Pac. 707; Cady v. Zimmerman, 20 Mont. 225, 50 Pac. 553; Morris v. McLaughlin, 25 Mont. 151, 64 Pac. 219; Taylor v. Malta Mercantile Co., 47 Mont. 342, 132 Pac. 549; 27 C. J. 581.) In applying the statutory rule, consideration must be given to the situation of the parties at the
Plaintiff testified that he personally paid $30 upon the in- debtedness to the union, and, when he left to enlist, he gave to his mother a sum of money sufficient to pay the balance. The mother testified to the same facts and also that on September 7 she gave to Jesse W. Puckett $150 of the money left with her by her son for the purpose of discharging the debt. The father testified to the same facts, and further that he paid off the indebtedness against the car on September 8 with the money which he received from the plaintiff’s mother. On cross-examination he reiterated the statement concerning the payment of the debt. He testified: “Yes, I paid it. Paid it to Charlie Cooper, secretary of the local union at Klein, $150, I think, the last payment. The money which I paid Charlie Cooper was the money the boy had left there with his mother. She gave me the money to pay for it on the 7th of September in the morning. On the 8th of September, Sunday, I paid Charlie Cooper the balance, $150. # * * Mr. McKenzie was with me.” He was then asked if he had not sold some property immediately prior to making the payment, and answered that he had not. He was
While defendants were presenting their testimony, they sought to show that from March 9, 1918, until the time of the trial, Jesse W. Puckett was indebted to the defendant Polich at whose instance the writ of attachment had been issued and the property seized. The evidence was excluded, and error is assigned upon the ruling. Since the defendants were relying upon the defense that the provisions of section 8604 had not been complied with, it was indispensable that they prove that Polich was Jesse W. Puckett’s creditor,
Other technical errors were committed by the court, but it appears to us that it is quite impossible that they could have worked to defendants’ prejudice, and therefore they cannot be available upon these appeals. (Sec. 9191, Rev. Codes 1921.)
The only serious question arises from the giving of instruction 14, to the effect that, if the jury found the issues in favor of plaintiff, they should award him possession of the car or its value in case it could not be returned to him, and also damages for its wrongful detention. The instruction concludes as follows: “In this connection you are instructed that the measure of damages for the withholding of said car is the reasonable value of the use of the same while it was wrongfully detained by the defendants.” The only evidence of the usable value of the car related to its use in the taxicab business. The error in the rule as stated could not be illustrated better than it is in this instance. Under the evidence before us, if the defendants had destroyed the ear or otherwise disposed of it, their liability would have been measured by the value of the car ($450) and interest on that amount at eight per cent per annum from the date of the seizure to the date of the trial (sixteen months), or a total of $498; but, because they stored the ear and preserved it in the same condition as it was when seized, they are made liable by the verdict for a ear valued at $450 and for $450 damages for its detention,
In conformity to the rule heretofore established, the cause is remanded to the district court for a new trial of the issue of damages for wrongful detention only, unless the parties can agree upon the amount. When that issue is determined, the
Remanded.