Berry v. Geiser Manufacturing Co.

Opinion of the court by Irwin, J.: The first assignment of error is the sustaining of the motion to strike out certain parts of the petition. Wilson’s Statutes, general section 4323, provides: “If redundant or irrelevant matter be inserted in any pleadings, it may be stricken out on the motion of the party prejudiced thereby.” The ruling of the court striking out certain parts of the petition, .must depend for its correctness upon two propositions. 1st, was the matter stricken out redundant, or irrelevant. Judge Black, in his Law Dictionary, page 1009 defines redundancy to be, “The insertion in a pleading of matters foreign, extraneous, and irrelevant to that which it is intended to answer. The fault of introducing superfluous matters into a legal instrument.” The term irrelevant, is by the same learned author at page 644 defined to be. “Not relevant, not relating or applicable to the matter in issue — not supporting the issue.” Bouvier’s Law Dictionary, vol. 2, page 433, defines the term redundancy as, “Matter introduced in an answer, or pleading, which is foreign to the bill of articles.” Now in the case at bar, the question is; Were the matters stricken out foreign to the case? Were they immaterial, or extraneous to the issue involved ? If so, the decision of the trial court was right if not, it was wrong. It must be borne in mind that the record discloses that this was an action for conversion, following an action of replevin in the probate court. The action in replevin had proceeded to a final de-r cisión, so far as the issues joined in the probate court were *370 concerned. The demurrer to the petition filed in that court having 'been sustained, and this decision of tthe probate court not having been appealed from, and no further pleadings having been had in the probate court, the replevin action was dismissed. We take it .that the decision of the probate court in sustaining the demurrer, and dismissing the action, amounted in law; to an order for the return of the property covered by the replevin writ, by the plaintiff in the original action to the defendant, and that by the terms of the replevin bond in that case, it was the duty of the plaintiff to return said property to the defendant under the decision of the probate court, and from the time of the rendering of this decision, or at the expiration of the time for an appeal therefrom, that the holding of the possession of said property by the plaintiff in replevin, under and by virtue of the replevin writ, was wrongful, and no demand was necessary on the part of the defendant in replevin for the return of the property described in the writ. Now the portion of the petition which was stricken out by order of the court on the motion of the defendant in error was: First, that portion of the petition which alleged useable value of the property which it is claimed was converted by the defendant in error. If the allegation of the petition that the taking of the property was wrongful was sustained by the proof, then the defendant in error would be liable to the plaintiff in error for any and all damages occasioned by such taldng and such conversion, and up to the time that this property was destroyed by fire it must have had a useable value, and.this allegation of useable value was a necessary and proper allegation in the petition where the plaintiff seeks to recover damages sustained by a wrongful and unlawful con *371 version. Independent of tbe question as to whether under a wrongful taking and unlawful conversion, the defendant in error would be liable for the useable value subsequent to the time the same was destroyed by fire, it seems to us that he would certainly be liable for the useable value up to the time of such destruction. Then from another point of view, we think this allegation was proper as the useable value might be a criterion by which the market value of the property could be determined. The fifth request contained in the motion to strike out which was that exhibits “A.” and “B” be stricken out, was also sustained, notwithstanding the fact that no exhibits were in fact attached. This, to say the least, was unnecessary. The second and fourth request in the motion to strike out seeks to strike out that portion of the petition which alleges that the plaintiff in error, Berry, was able, ready and willing to pay the balance due on the property, that the defendant had expressly agreed to accept him, Berry, as paymaster, and agreed upon the terms and conditions of payment, and the said Berry had performed as far as it was his duty to perform, such agreement, and had tendered to the defendant all the requirements of the agreement, and that notwithstanding the subsequent agreement, and performance on the part of Berry, that the defendant had unlawfully taken, and wrongfully converted the personal property described in the petition. This it seems to us was a plain, simple statement of fact, and a statement of fact which, if true, would entitle the plaintiff to recover, and we do not think that a party to an action can be prejudiced by a statement of fact upon which the action of the other party rests, *372 and for this reason we think it was error on the part of the district, court .to strike out those portions of the petition. The other assignment of error is that the court erred in sustaining the demurrer of the defendant to the petition, and dismissing the cause at the cost of the plaintiffs. The two grounds upon which the demurrer was sustained were: First, because several causes of action are improperly joined; and second, because the petition does not state a cause of action. These can be considered as one. An examination of the amended petition will disclose that the material allegations of the petition are that plaintiffs were the owners, and in the possession of certain property, describing it, that the said property was of the value of $3000, and that it was purchased of the defendant, and that to the outfit as described, so purchased of the defendant, was added a weigher and self feeder which was of the value of $275.00. That upon the said purchase price had been paid to the defendant, $1451.51. That on the 26th day of August, 1899, while the plaintiffs were the owners, and in the peaceable and quiet possession of said property, the said defendant unlawfully and wrongfully took possession of the same, from the plaintiffs; that the defendant, knowing all of- the facts, the ability and readiness of the plaintiffs to pay any balance due on account of the purchase price of the said threshing outfit, accepted plaintiff Berry, and released the original purchasers, Smith & McDonald, and did as a matter of fact make and enter into a different contract with the plaintiff Berry for said property. That thereafter, and while the said defendant was in the wrongful possession of the said property which was out of and away from the control of the plaintiff, all of the said property, by reason of the carelessness and negligence of the *373 defendant, was burned and destroyed, with the exception of the engine, which the defendant still keeps, and has and still retains the possession of the same, and that all of said property was of the value of $3000.00. It seems to us that there can be no question but that these allegations in the petition raised an issue which the parties were entitled to have submitted to a jury. There was the issue raised by this allegation as to whether the property was wrongfully taken from the possession of the plaintiffs. There was also the question at issue as raised by this petition, as to whether the defendant, prior to the taking of possession of this property had not entered into another and different agreement with Berry, and as to whether or not Berry had performed on his part the subsequent or new agreement, and whether the defendant was not in default in not performing its part of the agreement, and as to whether, under the circumstances, the taking of the possession of this property by the defendant was wrongful. But it is contended by counsel for defendant in error that this entire question has been settled in the case of Geiser Mfg. Co., v. Berry, et al., 70 Pac. 202, and it is contended that this identical ease was before this court and it was there decided by this court that these facts did not entitle the plaintiff to a judgment, and that this decision became the settled law of the case. We have carefully examined the decision in the 70 Pac., and we do not think that the contention of the counsel for defendant is correct. All that was there decided was that it was error for the district court to hold that the action of the probate court in sustaining the demurrer to the petition in the original action was res adjudi-cata as to the right of possession. In that case the jury was *374 instructed that the action of the probate court in sustaining the demurrer to the petition .in replevin was conclusive of the right of possession, and the only question remaining was the amount of damages. This court held, and we think properly, that as the issue raised by the demurrer to the petition in replevin in the probate court could have been decided without deciding the merits of the question of the right of possession, that this decision of the probate court on the demurrer was not necessarily conclusive of the right of possession, and for this reason, and this reason alone, the judgment of the district court was reversed. But this decision of the supreme court in no way affects the right of these parties to have the question of the right of possession tried in the district court, and the allegations of the petition raise the identical issue of the right of possession, and should have been submitted to a jury under proper instructions of the court. It is also contended that the allegations of the petition as to property having been destroyed by fire through the carelessness and negligence of the defendant in error is not stated with sufficient definiteness. That the manner in which the defendant in error was careless is not stated. Some authorities are cited to sustain this position. But we believe a different rule obtains where parties are shown to be at the time of the fire wrongfully in possession, to that which obtains in the class of cases cited in the authorities. But even if this contention is, tenable, it would only prove that the petition might, be subject to- a motion to make more definite and certain. In the absence of such a motion, we think that this petition states the carelessness with sufficient certainty. *375 One of the allegations of the petition is that the ’ machinery and threshing outfit as it is called, which was taken, was of much greater value than the balance due the defendant from the Smiths, and the allegation is made that Berry, the plaintiff in error, having become the owner and entitled to whatever possession and rights the Smiths held, it was due to Berry that an accounting be had, and any balance which might remain after the payment of the indebtedness to the defendant in error should be paid to him. But in the most liberal construction that might be made with reference to the conduct of the defendant as plaintiff in the original suit mentioned, it would seem that justice and fair dealing would dictate that they should have proceeded to take the property by virtue of their chattel mortgage, and to dispose of the property as in the mortgage provided, and to apply the proceeds to the satisfaction of their debt so that the parties might determine whether any balance remains. This would seem to be in keeping with equity and good conscience. But this petition contained the statement fairly and squarely of the conversion of all of this property by the defendant, and this was a traversable fact, and a fact which, under proper instructions, should have been submitted to a jury, and we think the action of the court in striking out portions of the petition, and in sustaining a general demurrer to the petition and dismissing the case at the costs of the plaintiff, was such error for which the case will be reversed. We do not desire at this time to be understood as expressing any opinion as to whether the taking and conversion of the property by the defendant was rightful or wrongful, as under this decision this case must again be submitted to the jury, and we only say that the petition, and the alie- *376 gations therein, contained, raised an issue which should be tried by a jury under proper instructions of the court. For this reason, the judgment of the district court is reversed at the costs of the defendant in error, and the cause remanded to the district court for further action in accordance with this opinion. Plainer, J., who presided in the court below, not sitting; all the other Justices concurring.