Didriksen v. Broadview Hardware Co.

MR. JUSTICE HURLY

delivered the opinion of the court.

This is an action for’ damages in conversion, in which the plaintiff had judgment, from which defendants appeal. The appeal presents the single question as to whether the complaint states a cause of action. The material portions of the complaint, paraphrased, are as follows: That the defendant Broadview Hardware Company is a Montana corporation; that on or about November 1, 1916, the “plaintiff was the owner of and lawfully possessed of” certain personal property, the value of which is alleged; that on or about the first day of November, 1916,- the defendant corporation procured and employed the defendant Harrison to take and seize said goods, and that defendants willfully, wrongfully and unlawfully took the same from the possession of one Meeker, agent of the plaintiff, with whom he had left said goods for safekeeping “until his return to Broadview, Montana”; that the defendants sold the same, and held the proceeds thereof for their own use and benefit, and- thereby wrongfully converted said goods to their own use and benefit, so that the same have become wholly lost to the plaintiff, to his damage; that on or about the twentieth day of January, 1917, “plaintiff returned to Broadview, Montana, met his said agent, and became entitled to the immediate possession of said goods,” then for the first time learning of defendants’ wrongful acts in seizing and disposing of said property. There follows an allegation of demand for return of the goods, and refusal on the part Of the defendants, together with an appropriate prayer for judgment. There was no demurrer, and, so far as appears, the sufficiency of the complaint was not attacked in the trial court. The answer admits that the plaintiff is a corporation, and denies all other allegations of the complaint.

*426 Here the plaintiff alleged his ownership of the property, [1] and that he was lawfully possessed of the same. Certainly it is an inevitable inference from such statement that plaintiff (owner) “lawfully possessed” Was then entitled to such possession.

In Babcock v. Caldwell, 22 Mont. 460 , 56 Pac. 1081 , this court said: “Defendant attacks the complaint upon the ground that it fails to state a cause of action by reason of the omission therefrom of an allegation that the plaintiff was the owner and entitled to possession at the commencement of the action. The complaint avers, among other things, that ‘on the twenty-fourth day of September, 1895, the plaintiff was the owner and in possession of’ the property, and that on said day the defendant took possession of the same, and converted it to his own use. It is not necessary’, in a case of this kind, where damages only are recoverable, that plaintiff’s ownership and right of possession, or either, should have existed when the action was begun. * * * In an action to recover the possession of chattels, the rule is different. The complaint is sufficient.”

Later in the complaint plaintiff states the fact of his return to the state, and that he then became entitled to the immediate possession. This is only explanatory of the agency or custody held by Meeker, and it is fairly inferable that the statement was placed in the complaint in explanation also of the failure to bring action earlier, so that plaintiff could attempt to put himself in position to assert demand for the highest market value of the property between the date of the conversion and the commencement of the 'action. 'This statement cannot be said to negative the previous allegation of ownership and lawful possession by plaintiff on the date of the conversion.

Plaintiff’s rights to damages were fixed as of the date of the [2] conversion, and not upon conditions of ownership or right to possession as of a later date. (Sawyer v. Robertson, 11 Mont. 416 , 28 Pac. 456 . See, also, Paine v. British-Butte *427 Min. Co., 41 Mont. 28 , 108 Pac. 12 ; Kinsman v. Stanhope, 50 Mont. 41 , L. R. A. 1916C, 443, 144 Pac. 1083 ; Wetzel v. Power, 5 Mont. 214 , 2 Pac. 338 .)

The allegations of the complaint as to Meeker show nothing more than a mere naked custody or agency, unaccompanied with any interest or lien in the property,' and therefore this possession was in effect the possession of plaintiff.

It is further contended that the complaint is defective, in [3] that corporate capacity is alleged only as of the date of the commencement of the action, and not as of the date of the conversion, and Harrington v. Stromberg-Mullins Co., 29 Mont. 157 , 74 Pac. 413 , is cited as follows: “In passing, we may say that the complaint alleges that the defendant was, at the date of the filing of the complaint, a corporation. There is no allegation that it was such at the time of the alleged conversion.” This language, however, was not a statement that such a defect was fatal. In Pearce v. Butte Electric Ry. Co., 41 Mont. 304 , 109 Pac. 275 , this court said: “It is now contended that .the complaint does not state facts sufficient to constitute a cause of action, for the. reason that, while there is an allegation therein to the effect that the defendant is a corporation, there is no averment showing where or under what law its corporate capacity was established. * * *1. Both propositions are extremely technical. In so far as the first is concerned, we think it is without merit. The complaint does aver that the defendant is a corporation. This allegation is sufficient to show that it had the legal capacity to be sued. We think this is all that is required. It would seem to be unnecessary for the plaintiff to inform the defendant of the place of its incorporation. It must be better ® * * informed on that point than is he.”

It will be noted that the complaint throughout alleges that the acts complained of were the acts of the defendants jointly. If the defendant corporation did not participate in the acts charged, this would be a complete defense as to it, as would the fact, if such it were, that it was not a corporation at the *428 time of the alleged conversion. Defendants, if they desired the complaint more specific, could have filed special demurrer pointing out the defect in the trial court, but upon review here, after a trial upon the issues, where the question is raised for the first time, we deem it too late to urge an objection to a mere formal allegation.

The judgment is affirmed.

Affirmed.

Mr. Chief Justice Bbantdy and Mr. Justice Coopeb concur.