Reardon v. Patterson

Buck, J. The main specifications of error are that the evidence is insufficient to justify the trial court in finding that there was a breach of contract on the part of Reardon and his partner, and that it is also insufficient, to justify any finding that the school warrant was deposited with Patterson as a guaranty for the performance of the Murray contract. The evidence as to the breach of contract was conflicting, and, under the well-known rule applicable, we cannot disturb this finding. Nor was the evidence insufficient to justify the finding that there was a pledge of the warrant. Upon that portion of Reardon’s testimony (quoted in the statement) alone, the lower court had a right to decide that the warrant was delivered in place of the bond required by the contract. It appears clearly enough that Patterson held the warrant primarily to secure the performance of the White & Demars contract. There is no conflict, however, between White & Demars and responaents in respect to it. All right of White & Demars being eliminated, Murray’s right alone to the warrant is for our consideration. But appellant insists that, even upon the assumption that Murray had a right to hold the warrant, he could not dispose of it without notice of sale or a demand for its redemption. Murray sold it for its full value, — $483.30,—and has credited appellant in that sum upon the damages (in excess of it) which the trial court found he had sustained by reason of the breach of the contract on the part of Reardon and his partner. By [234] disposing of the warrant without giving Reardon an opportunity to redeem it, or any notice of sale, Murray was guilty of a conversion without doubt, and his liability for such a conversion doubtless would be the valúe of the warrant at the time of the conversion, with legal interest from that date. (See Brunell v. Cook, 13 Mont. 497, 34 Pac. 1015; Gay v. Moss, 34 Cal. 125; Robinson v. Hurley, 11 Ia. 410.) Still, do the rules of law as to a notice and demand invoked by appellant avail him under the facts of this case ? He has received the benefit of what he might recover even if he could maintain his present action. Murray has credited him with the full value of the warrant. The reason for these rules as to notice and opportunity for redemption are not applicable. These rules are intended to protect the pledgor from a sacrifice of a pledge. By mere conversion of a pledge, a pledgee does not necessarily annul the contract upon which it rests. (See Jones on Pledges, § 420.) A conversion by a pledgee does not per se absolve the pledgor from the payment of the debt he has secured. As a rule, before a pledgor can recover the property pledged, or its value, in an action for conversion, he must establish a right of possession. Without right of possession such a suit is not maintainable. (See Laubenheimer v. Bach, Cory & Co. (decided at this term) 19 Mont. 177, 47 Pac. 803.) And the right to the possession of the property which he has pledged follows from the extinguishment of the debt secured, or a sufficient tender of payment of such debt. A tender of what was due Murray was essential for the establishment of the right of plaintiff to recover in this action. (Robinson v. Hurley, 79 Am. Dec. 497, and note on page 506; Hancock v. Insurance Co., 114 Mass. 155; Jones on Pledges, § 748.) There are two more specifications of error to be disposed of. A witness for plaintiff, in reply to a question, testified as follows in reference to a conversation he had had with a witness for defendants: “The conversation was, he called me across the street, and said, ‘Hello, Bill, do you want to make three dollars?’ I said, ‘How, Jack?’ and he said, ‘Well, there is [235] a subpoena; go and see Murray’s lawyer, and get subpoenaed, and there is three dollars in it.’” The trial court, on the ground that this answer was immaterial, struck it out. The ruling was correct. Another witness for plaintiff, in answer to a question as to a conversation he had with a witness for defendants, testified . as follows: “I had a conversation with John Gill within the last two weeks, on Main street. He came to me, and said, in in the presence of Mr. Gallagher, ‘You want to subpoena me for a witness there. ’ I said to Mr. Gill, ‘I have not got anything to do with the case.’ He said, ‘Well, I will see Tim . (Reardon). He don’t have very much to say to me, and I don’t like to ask him. ’ I said, ‘I have not got anything to do with it, but I can tell him what you say. ’ He said, T will make a first-class witness for you. I know that Murray has had miners working around there, picking up big planks, and dropping them on the floors. ’ ’ ’ This answer was also stricken out, on the ground that it was immaterial. This last ruling may have been erronequs, but soon afterwards the same witness was allowed to testify to substantially what'was contained in the answer excluded. The error, if any; was cured. The order denying a motion for a new trial is affirmed. Affirmed. Pemberton, C. J., and Hunt, J., concur.