120 N.W. 563 | N.D. | 1909
Lead Opinion
This is an action in claim and delivery. The complaint is in the usual form, alleging that plaintiff is the owner and entitled to possession of 103 steers, and that the same are unlawfully detained by the defendant, that they were of the value of $2,000, to which complaint defendant interposed the following answer: “The defendant answers to the complaint, and denies: (1) That the plaintiff at the time stated in the complaint, or ever or at all, was in possession or entitled to the possession of the steers described in the complaint, or any of them. (2) Denies that said steers or any of them are or ever were the property of the plaintiff. (3) Denies that said steers are or were at the time alleged,-or at any time since, of the value of two thousand ($2,000) dollars. Wherefore the defendant asks that the complaint of the plaintiff be dismissed, and that he be awarded a judgment against the plaintiff for his costs and disbursements herein.” The case was tried by the district court of Logan county without a jury, a jury having been waived. “It was stipulated and admitted by both.
It seems to be conclusively established by the evidence: That at the time of the commencement of this action, and for many years prior thereto, plaintiff and appellant owned and operated a cattle ranch in the county of Kidder, in this state, and lived thereon with her husband, Geo. S. Roberts. That for several years prior thereto one C. S. Budlong owned and operated a cattle ranch in the county of Logan, in this state. That in March, 1903, said Budlong owed this plaintiff over six hundred dollars for the care of his cattle, and that he purchased for her in South St. Paul, Minn., the cattle in controversy for about the sum of $1,169, and applied his indebtedness of $600 to plaintiff in making such purchase, that afterwards plaintiff paid the balance of the purchase price of $569 by borrowing the money from the Kidder County Bank, of Steele, giving a mortgage therefor on her real estate. That the plaintiff’s cattle were not branded when she bought them, and that she had no stock mark of her own. That they were about the month of May, 1903, branded on the left ribs with Budlong’s brand “YO.” This brand on' the Budlong cattle was upon the left hip. While plaintiff’s husband, together with Budlong and two ór three other men, were branding the cattle, plaintiff appeared and made objections. Her husband and Budlong told her they were doing it for convenience, as the cattle were going to herd together. The object of branding plaintiff’s cattle on the ribs w;as so they could be distinguished from Budlong’s cattle. That plaintiff’s husband was her agent in taking care of her cattle and managing, her cattle ranch.
Over plaintiff’s objection the court allowed defendant to show that on October 10, 1903, said C. S. Budlong delivered his promissory note for $10,204.43 to defendant, and secured the same by a chattel mortgage made by himself and wife, which was intended to cover all the cattle owned by said Budlong, and recited that said cattle were branded “YO” on 'either left side or hip; that such mortgage was foreclosed by order of defendant in October, 1904, and the cattle bid in for him. The court also allowed the defendant, over plaintiff’s objection, to introduce in evidence Exhibits A, B, F, and G. Exhibit .B, first in point of time, is an agreement between Budlong and plaintiff’s husband, dated April 22, 1903, by which the latter, who claimed in that agreement, to be the owner of the cattle in controversy, agreed to assist Budlong in placing his brand “YO” on said cattle on left side between shoulder and hip, and also agreed that said Budlong could mortgage the said cattle; that the branding and mortgaging of said cattle was for accommodation only; and they were to be returned to said .Roberts free and clear of all incumbrance not later than November 30, 1903. Exhibit A is a letter from Roberts to Budlong, dated October 10, 1903, by which Roberts, in substance, consents that Budlong may in-dude these cattle in renewing the loan with the same understanding or terms of agreement as contained in Exhibit B. Exhibit F is the chattel mortgage hereinbefore mentioned given by Budlong and wife to defendant on the 10th day of October, 1903, which defendant claims covered the cattle in controversy. Exhibit G is an envelope in which was contained Exhibits A and B, indorsed as follows: “Deliver to C. S. Budlong, or Mrs. Budlong, or C. B. Little. Opened by N. C. Young.” These rulings are each assigned as error, and will hereinafter be considered.
The findings of fact made by the trial court and which are now controverted are as follows, being the fifth, sixth, seventh, eighth, ninth and tenth:
“(5) That, on the 10th day of October, 1903, C. S. Budlong executed his certain chattel mortgage to secure the payment of*612 ■a certain promissory note dated October 10, 1903, for the sum of $10,204.43, payable to the order of C. B. Little, defendant herein, which said chattel mortgage described with other property, the cattle involved herein, and constituted a valid and. subsisting lien against the property involved in this action at the time of the execution thereof.
.“(6) That at the time of the execution of said note and mortgage by the said C. S. Budlong he was in possession of and had good right and full authority to mortgage the said property involved in this action in the manner and form the same was so' mortgaged, and did create thereby a valid and subsisting lien against said property for the payment of said debt. That the plaintiff was fully apprised of the execution of this mortgage and fully consented thereto.
“(7) That thereafter and on the 22nd day of October, 1904, the said chattel mortgage was duly foreclosed for non-payment of said indebtedness and said cattle involved in this action were duly sold to C. B. Little, the defendant herein, who thereb} became the owner thereof.
“(8) That the value of said cattle at the time of the taking of the same and the foreclosure of said mortgage was $1,370. .
“(9) That at the date of the commencement of this action the plaintiff, had no right of possession of said property involved in this action, and has not now any right in or title to or ownership of any of the said property.
“(10) That the allegations of the plaintiff’s complaint herein are not true, and the allegation of the defendant’s answer herein of the ownership of all the cattle involved in this action, being 86 head of cattle branded YO’ on the left ribs, is true.”
Appellant’s contention is that these findings of fact are not supported by the evidence. This contention must be sustained as to-all the part of the fifth finding of fact, which reads as follows: “Which said chattel mortgage described with other property, the cattle involved herein, and constituted a valid and subsisting lien against the property involved in this action at the time of the execution thereof” — and as to all the sixth, seventh, ninth and tenth findings of fact, unless the appellant’s husband as her agent had authority to execute Exhibits A and B, and to execute acommodation paper for her, or was the owner of said cattle, or unless she is estopped by her actions from maintaining this action or asserting
Respondent contends that the appellant herein, by her actions, during all the transactions recited in the record, waived her right to assert any claim to such stock, arid is estopped by her conduct from maintaining this action. He claims that there is abundant evidence to show that appellant knew of the power to mortgage given by her husband April 22, 1903, and renewed October 10, 1903. We do not so read the evidence. Her testimony shows that she first learned, through her husband, in the latter part of October, 1903, that defendant claimed a mortgage on the property in controversy. She was also informed by her husband at the same time that he had loaned the cattle to Mr. Budlong. This evidence is
The burden of proving an estoppel is on him who asserts it, and the evidence in this case falls far short of proving an estoppel on the part of the appellant. Appellant contends that respondent is not in position to avail himself of an estoppel on her part for the reason that he has not pleaded the same. While there is much force in this contention, it is not necessary to a decision of this case to pass on that question. There are other errors complained of by the appellant in the ruling of the court in admitting evidence, but in our view of the case it is unnecessary to pass upon them at the present time.
The order and judgment appealed from are reversed.
Concurrence Opinion
(concurring). The disregard in the trial of this case of the rules of pleading and of evidence has created great confusion in the record, and made it extremely difficult for me, at least, to arrive at a determination of the questions submitted. The complaint is in the usual form for actions for claim and delivery. The answer simply denies possession, or right to possession, or ownership, at any time in plaintiff. The evidence submitted by the defense was directed toward proving the estoppel of plaintiff to assert ownership as against the defendant. No proper objections were made to the admission of considerable evidence intended to
The findings were drawn on the theory of the pleadings disregarding the theory on which the defense was in fact made, and some are in direct conflict. Many of the “findings of fact” are mere conclusions of law, and several material findings are wholly unsupported by evidence. When the unsupported findings are eliminated, those which remain do not warrant the judgment; and for this reason I concur in holding that a new trial should be granted.
Morgan, C. J. (dissenting.) I think the judgment should be affirmed. The evidence, although not entirely satisfactory, warrants the finding of the lower court that the plaintiff authorized the giving of the mortgage. This is particularly a case where this court should give great weight to the findings of the trial court, and they should not be disturbed unless shown to be clearly and unquestionably against the preponderance of the evidence. Dowagiac Mfg. Co. v. Hellekson, 13 N. D. 257, 100 N. W. 717; Jasper v. Hazen, 4 N. D. 1, 58 N. W. 454, 23 L. R. A. 58. The plaintiff’s husband was her agent in all business matters. She knew that the possession of the stock was in-her husband. She did not object to the branding of the cattle with what was practically the Bud-long brand. She made no objection when informed that the husband had loaned the cattle to Budlong “to help him out,” and never repudiated the mortgage until the trial. From the evidence it is difficult to see how she could have been ignorant of the giving of the mortgage when all these matters are taken into consideration, together with the intimate relations existing between husband and wife. If she was ignorant of the mortgage, I think she should be estopped by her actidns from asserting that fact now. The fact of not pleading an estoppel is immaterial in this case
Concurrence Opinion
I concur in the views of the Chief Justice.