Mills v. Glennon

BUCK, J. This action sets forth in the complaint two causes of action: 1. A balance on account; and 3. Damages 'for breach of contract. It was tried by the court at the August term of the district court, 1884. Judgment was rendered for the plaintiff for the sum of $1,638.79. The defendants made a motion for a new trial, which was overruled; and from the order overruling the same, and from the judgment, take this ’appeal, and bring the cause to this court upon a statement of the case. The first assignment of error is that the court erred in overruling the demurrer to the complaint. The demurrer is both general and special, but the attorney urged upon the argument but one objection, namely, that in the first count in the complaint several causes of action are improperly united, and that the same is ambiguous and uncertain, and mixed together without any statement or averment of the amount claimed to •be due on each one separately. That portion of the complaint objected to for these reasons is as follows: “That the said defendants are indebted to the said plaintiff in the sum of $430.11, for balance of account for money loaned, services pef-formed by plaintiff for defendants, for grain and various articles of farm produce, and for money paid for defendants’ use — the whole done, furnished, and performed at the request of the defendants between January 1, 1881, and April 1, 1884; that the whole aggregate value of which items is the sum -of $1,043.73, no part of which has been paid, except $633.65, the said balance of $430.11 still being unpaid.” The objection to this pleading set out in appellants’ brief and urged in the argument, is “that the common counts cannot all be united in one count as one cause of action without any specification of the [108] sums due upon each cause.” Section 831 of the Code of Civil Procedure provides that several causes of action may be united in the same complaint, in several instances specified therein. Among these are causes arising upon contract, express or implied; but the several causes must be separately stated. The allegation objected to set out a balance of account, specifying, by brief mention, the character of the different items composing the account. Section 851 of our code provides as follows: “It is not necessary for a party to set forth in a pleading the items of an account therein alleged, but he must deliver to the adverse party, within ten days after demand thereof, in writing, a copy of the account, or be precluded from giving evidence thereof. The court or judge thereof may order a further account when the one delivered is too general, or is defective in any particular.” This provision was evidently intended to relieve the pleader from the necessity of specifying the exact amount of each separate item, and amply protects the adverse party from surprise at the trial. The gravamen of the allegation is the failure of the defendants to pay the balance alleged to be due on the account. We think it constitutes but one eause of action, and was well pleaded. (1 Estee on Pleading and Practice, 1st ed., 374, note 5, and eases cited; Guernsey v. Carver, 8 Wend. 493, 24 Am. Dec. 60, and note; Stevens v. Lockwood, 13 Wend. 645, 28 Am. Dec. 493, and note.) The objection to the second count of the complaint was waived on the argument. The assignment of errors brings up two important questions of evidence. The first is an exception to the ruling of the court in admitting oral evidence of the consent of the mortgagee of a chattel mortgage to the transfer of the mortgaged property by the mortgagor. General Laws of Idaho, eleventh session, 1880-81, page 307, title “Chattel Mortgages,” is as follows: “If the mortgagor of any property mortgaged in pursuance of the provisions of this act shall, while such mortgage remains unsatisfied in whole or in part, willfully remove from the county or counties where the mortgage is recorded, destroy, conceal, or sell, or in any manner dispose of the property mortgaged or any part thereof, without the written consent of the owner of such mortgage, he gha.n be deemed guilty of larceny, and upon conviction shall be [109] punished accordingly, and any such sale or transfer shall be void.” It is claimed by the appellants that under this enactment, under no circumstances, can oral evidence be admitted to justify a sale of mortgaged property, and that every such sale without the written consent of the mortgagee is void. A critical examination of the law will, we think, lead to a different conclusion. It is not every sale that becomes void. To thus avoid a sale it must be willfully done. In law “willfully” has a well-defined signification. Bouvier says it has been decided that “maliciously” is its equivalent. This term implies not merely voluntarily or intentionally, but “legal malice”; an evil intent without “justifiable excuse,” with “a bad purpose,” “corruptly.” The evident intent of the legislature in this enactment is to protect the mortgagee against the transfer of the mortgaged property with the corrupt purpose of destroying his security. When such a transfer is made he may disregard the transaction as void and take possession of the property. In the case at bar the validity of the sale is called in question by the vendee as against the vendor. The mortgagees are not objecting to it. The evidence objected to is as to the oral consent of the mortgagees to the transfer. In this instance there were two mortgagees. If the oral consent of one or both of these were given to the sale, it would be competent evidence to show the motive of the mortgagor in making the sale. It is claimed that the interests of the mortgagees were entirely distinct, and that one had no right to consent for the other. This might be true and yet the mortgagor might have supposed that one was authorized to speak for both; and under such supposition, honestly entertained, he could hardly be charged with a bad intent. We think this evidence was properly admitted. (Jones on Chattel Mortgages, secs. 455-465; Stafford v. Whitcomb, 8 Allen, 518; Gage v. Whittier, 17 N. H. 312.) The second objection to the evidence is to the ruling of the ■court admitting plaintiffs’ books of accounts. The plaintiff testified that his original books of account had been consumed in a fire that destroyed his house; that the book presented contained a copy of the original entries transferred by himself, [110] sometimes once a week and sometimes once a month. No ob7 jeetion was urged upon the trial or in the argument as to the admission of the original" books, had they been in existence. The only point raised and argued was as to the competency of this evidence; the original having been burned, and the book presented being a true copy thereof. No authorities were cited upon the briefs, nor in the oral argument of counsel. We find, however, in 4 Mass. 455, Sewall, J., lays down the following proposition in the ease of Prince v. Smith, in which the original books had been burned: “If the proof in this case had tended to show that the.items of this account.had actually existed in the original books, and the transcript offered had been truly taken therefrom, I should have no doubt of the ad-r missibility of a transcript, thus compared and proved, upon the. ground of necessity, and that it was the best evidence which the case admitted, under all the circumstances.” In the cases cited, these preliminary proofs were not given, and the ruling of the court in admitting the books was, for that reason, reversed. In the case at bar, these preliminary conditions being conceded, and the only point made being as to whether copies thereof could ever be admitted, we see no error in the court, under the authority cited, in admitting them. A careful analysis of the evidence, however, shows that there were no items disputed in the account .of plaintiff upon which evidence was not given, for and against, by living witnesses at the trial. Indeed, the record does not show that the account-book of plaintiff was in fact ever actually admitted. On the contrary, an inspection of the records indicates that it was used by the plaintiff as a memorandum from which to refresh his memory, and the disputed items seem to have been supported by evidence of witnesses at the trial. It is stated in Baird v. Hooker, 8 Ill. App. 306, “that where books of account are improperly admitted at a trial it is not such error as will reverse, if the facts have been proved by evidence aliunde We see no error in the admission of evidence which will justify a reversal of the judgment. The appellants assign as error the amount of damages allowed, against the findings. An inspection of the evidence shows that twenty-two thousand nine hundred and fifty-oné [111] pounds of the grain in question were actually turned over by defendants to the mortgagors, Danski and Haug, and at the time of the trial was held by them under the mortgage. The contract price, therefore, was two and. one-half cents per pound. The account of defendants for hauling said grain from Garden Yalley to Idaho City was one cent per pound, as testified to by defendants, and undisputed by plaintiff. We think the judgment should be modified by deducting from- the amount thereof the value of said grain and freight, amounting •to $802.88. The cause is remanded, and the court directed to modify the judgment in accordance with this opinion j costs of appeal to be equally divided between parties. Morgan, C. J., and Broderick, J., concurring.