6 Mont. 142 | Mont. | 1886
This is an action of claim and delivery to-recover the possession of a herd of cattle. The respondents-(defendants) withheld the cattle, claiming a lien thereon for their compensation as herders thereof.
It appears that the Anglo-American Cattle Company (Limited) of London,' in the spring of 1880, purchased in Texas the cattle in question; and through B. B. Groom, agent of said company, caused them to be driven thence to the territory of Montana, where they arrived about the 1st of October of that year. While the cattle were being so driven to Montana, Samuel Birdsell and some of the other of the respondents were hired by Groom, at different times, to work for the company by the month, and the other respondents were afterwards hired to work in the same way, all of them being hired at different times and for different wages per month. For the services so rendered in driving said cattle, the respondents claim, each for himself, a herder’s lien, under the provisions of our statute.
While said cattle were en route to Montana, said company sold the same to the appellant, and delivered to him a bill of sale thereof; and when, in the spring of 1881, he sought to take possession by virtue of said bill of sale, he found the respondents in possession, claiming a lien for their wages by the month, while so engaged in driving said cattle. The answer of the respondents, in substance, alleges that, under and by virtue of a contract for hire as herders with one B. B. Groom, as the duly authorized agent for such hire, of the Anglo-American Cattle Company, of these defendants, Samuel Birdsell was under contract of hire with said company, in charge of said cattle, to herd and drive-the same, at the rate of $125 per month while on the trail, and $100 per month thereafter; that Groom was the duly authorized agent of said company to hire said Birdsell and the other defendants as such herders; that the defendants. Johnson, Cutleaden, Smith, Boca, and Morley, were hired by Groom as such herders, at the rate of $30 per month while on the trail, and $40 per month thereafter, and were
There was a demurrer to this answer, which was overruled, and this action of the court is one of the errors complained of; We think this demurrer ought to have been sustained. There was no joint interest between the defendants. They each claim under separate and individual contracts. Neither was interested in the contract or claim of the other. They could not have joined to enforce their liens, if they had any, as plaintiffs. Where there are several parties, if their contract be joint, they must all be made defendants; but where the promise is so framed that it does not confer upon the plaintiff a remedy against the contractors jointly, but each is only separately responsible for his own act, it is essential to sue them distinctly. 1 Ch. PI. 48-50. If the defendants could not sue on these separate and individual claims jointly, they cannot answer jointly and set up a counter-claim. If a return of the cattle had been awarded, to whom should they have been delivered ? Each of the thirteen defendants would have been entitled to them as against all the others.
If a misjoinder of defendants were the only objection to the answer, it might be amended and made to conform to the rules of pleading; but the greater question remains,
Under this statute, before the lien comes into existence, the cattle must have been intrusted to the party claiming them, and there must have been a contract between the parties for their keeping. "Whether the contract for keeping be for the purpose of feeding, herding, ranching, or pasturing, there must be a contract for the keeping. There must be'a delivery of possession and a contract for the keeping for one purpose or the other, before a lien is created. Delivery of possession under a contract to drive cattle from one place to another would not be a contract under the statute for their keeping.
The cattle in question Avere never intrusted to the defendants by the company. The company intrusted Groom, their
The statute was enacted to protect those persons who have a place or places for keeping and caring for the stock named therein and who contract for such keeping at such place, either for the purpose of feeding, herding, ranching, or pasturing.
No lien arises for the mere driving of cattle for wages by the month. And in no event could any lien attach by virtue of our .statute for driving, or even for keeping and herding cattle, in the states of Texas or Nebraska, or in any place where our statute was not in force, especially under a contract made in those states. The pleadings and testimony show that even if these defendants had liens upon this property, they could not join in asserting their claim. Their liens, if any, are several and not joint, and arise by virtue of separate, independent and distinct contracts, in which the defendants have no common interest. They must, therefore, sever in their defenses.
It is said that this answer ought to be maintained to prevent a multiplicity ■ of suits. That principle cannot be invoked in an action at law arising upon separate and independent contracts, in favor of different persons for the payment of money only. After the' cattle arrived in Montana they were not intrusted to the defendants by the company nor by the appellant; and there was im contract with the defendants, either jointly or severally, for their keeping for the purpose of herding or for any other purpose. They were each separately and individually hired by the company
The judgment is reversed and the cause remanded with directions to the court below that judgment for possession of the property be entered for the appellant.
Judgment reversed.