29 Mont. 74 | Mont. | 1903
prepared the opinion for the court.
The facts upon which this action is based are about as follows, viz.: Some ten men entered into a written contract under date of March 11, 1896, to. work the West Elba mine under lease. Seven of the men were parties of the first part under this contract, and agreed to perform, all labor necessarily required in the working- of the mine. The other three, Pliondorf, Pearson and Thompson, were parties of the second part under this contract, and agreed to furnish all supplies necessarily required for such working. The net proceeds were to be divided between the parties of the first and second part equally, each to- receive one-half thereof. About the 29th day of April, 1896, the three parties of the second part transferred, by written bill of sale, their undivided one:half interest in and to about twenty tons of ore then in the orehouse and bins at the mine, or the proceeds thereof, if the ore should afterwards be shipped and treated. The ore Avas shipped to the Parrot Smelting Company, and treated by that company. The net proceeds, of the shipment amounted to $868.76, of which plaintiff claimed to. be the owner of one,-half, or $434.38. After the ore had been treated, the defendant, as constable, levied upon that part of the proceeds claimed by the plaintiff, under writs directed against plaintiff’s grantors, collected the money, and had the same in his possession Avlien this suit Avas brought, as admitted in defendant’s answer. The plaintiff then demanded of defendant the release of his portion of the proceeds of the ore from the levy, and the payment- to him of $434.38, AA'hich Avas refused, and .thereupon plaintiff instituted this suit. A complaint Avas filed containing allegations of which the following is' a brief summary, viz.: (1) That defendant was a duly elected and qualified constable
No question concerning the sufficiency of these pleadings seems to have been raised by either party upon either trial or appeal, but both parties have always treated them as sufficient to raise all the issues in the case. Some very interesting and troublesome questions suggest themselves to usi, as to the character and sufficiency of the complaint, viz.: (1) What is the character of this action — conversion, trespass, or assumpsit? (2) Are the allegations sufficient to maintain either action ? (3) If in assumpsit, could'a recovery be had in such action under the decision of this court in Merchants’ & Miners’ Nat’l Bank v. Barnes, 18 Mont. 335, 45 Pac. 218, 47 L. R. A. 737, 56 Am. St. Rep. 586 ? None of these questions seem ever to have been raised, or even suggested, and wie will therefore not consider or decide any of them; but, inasmuch as'the case must be reversed, we have thought proper to suggest them for the consideration of the respective attorneys. We also suggest the question as to whether the denials in the answer are sufficient to raise any issue save that of plaintiff’s ownership.
We shall only consider two of the numerous errors assigned,
The bill of salo under which plaintiff claims describes the property in the following language : “All of our right, title and interest in and to about twenty tons of silver and gold ore now contained in the orehouse and orebina of the1 West Elba mine, lot 243, T. 3, N. R. 7 W., Silver Bow county, Montana, the said ore having been extracted by the said parties and: others.”
The first witness for plaintiff testified: “When I received this bill of sale for Mr. Yank I went over to the mine with Mr. Phondorf and told Mr. Hughes, about it. Tie was in charge there at the time. I saw the shipment of ore. It was in the house there. Mr. Hughes showed it to me.”
A. P. Phondorf, a witness on behalf of plaintiff, also testified: “Mr. Yank was. not there, and I gave the bill of sale to Mr. Lingley, and we together went out to the mine, and Mr. Hughes, the engineer, who was on top', and Mr. Lingley, showed him the bill of sale; and Mr. Hughes showed Mr. Lingley where the ore was, of which the bill of sale was a transfer.” On cross-examination, Phondorf testified as follows: “As far as I remember, there was something like nineteen or twenty tons of ore in the bin when we made the sale. I know that because I remember something about the size of the pile. This is an estimate. I did not know the exact weight. * * * The ore we sold Mr. Yank at the time we gave this bill of sale was in the orehouse.”
It is clear from the foregoing testimony that the ore intended by Phondorf and Pearson and James to be transferred to plaintiff by the bill of sale was in the orehouse at the mine when, the bill of sale was made. On cross-examination of Phondorf, he .further testified as follows: “I did not know whether there was any more ore taken out of the mine, but the mine ran for
Counsel made the following offer of proof as to ores being-raised from the mine and placed in the orehouse with the ore in question: “We offer to prove- by this witness and the other witness, Mr. Oleson, that after the date of tire alleged bill of sale, and before they had any knowledge of it, or notice of its existence, they hoisted about four tons of ore of equal or greater value than the ore that had theretofore been placed in the bins, and placed it in the bins, at the West Elba mine, and that this ore was part of the shipment of April 30th, for which plaintiff received the proceeds, and for which this action was commenced.” The court excluded this offer, and the defendant alleges .error. There is no doubt but that defendant had a perfect right to show that ore had been hoisted and placed in the same bin with the ore in question, and shipped and reduced with the ore in question, after the bill of sale had been given. The bill of sale only purported to convey to plaintiff an undivided one-half of the ore in the orehouse at the date thereof. If more ore was. placed therein after that date, and shipped to the smelter, and treated at the smelter, plaintiff certainly could not, under his bill of sale, claim that he was- entitled to one-half of the net proceeds of such ore. lie did not buy it; it was not conveyed to him; he had no interest in it; yet he seeks in this action to obtain a judgment for an undivided one-half of the proceeds of all the ore shipped to the smelter and reduced at that time.
An examination of the record discloses the further fact that plaintiff called one E. N. Hughes as a witness, who gave testi
We advise tbat tbe judgment and order appealed from, be reversed, and a new trial granted.
Por tbe reasons, stated in the foregoing opinion, tbe judgment and order appealed from are reversed, and tbe cause remanded for a new trial.