Paine v. British-Butte Mining Co. , 41 Mont. 28 ( 1910 )

MR. JUSTICE HOLLOWAY

delivered the opinion of the court.

A demurrer having been sustained to the third amended complaint filed in this action, and plaintiffs, having declined to plead further, suffered judgment to be rendered and entered against them, and appealed to this court.

The complaint in question alleges that the plaintiffs are co-partners, doing business as Paine, Webber & Co.; that the defendant is a corporation having its principal office in Butte, with its president and secretary residing there; that it has a capital stock, represented by shares evidenced by stock certificates, and that the president and secretary are authorized to make transfers of stock upon the records of the corporation. It is then alleged that on February 1, 1908, N. J. Lloyd and Burt Adams Tower each owned 2,500 shares of the capital stock of the defendant company, and each held a certificate evidencing his ownership. The complaint then contains this allegation: “(5) That on the first day of February, 1908, the said Lloyd and Tower for a valuable consideration transferred and assigned the said shares of stock and the certificates representing the same in blank, and delivered the same and the whole thereof to these plaintiffs, who thereby became and were owners and holders thereof, and entitled thereto, and entitled to have the same transferred upon the books of the said defendant company.” It is further alleged that plaintiffs presented the said certificates to the officers of the defendant company, at its office in Butte, and demanded that the stock be transferred of record and new certificates issued to plaintiffs in lieu of the certificates so presented; that the defendant and its officers neglected and refused to make such transfer or to issue or deliver to plaintiffs new certificates representing the shares of stock so sought to be transferred, and by reason of such refusal the defendant company thereby converted such shares of stock to its own use. The complaint then sets forth the damages which plaintiffs have sustained by reason of the alleged conversion, and concludes with the usual prayer. The demurrer attacks the complaint on the ground, among others, that it is ambiguous and uncertain. The order of the court is a general one, and if any ground to the demurrer will justify the court’s ruling, it must be sustained.

In an action for conversion the plaintiff must allege a general or special ownership in the property and a right to the immediate possession of it at the time of the conversion. (Raymond v. Blancgrass, 36 Mont. 449, 93 Pac. 648, 15 L. R. A., n. s., 976; Harrington v. Stromberg-Mullins Co., 29 Mont. 157, 74 Pac. 413.) “It is sufficient to allege merely that at the time of the conversion the plaintiff was the owner and entitled to the immediate possession of the goods. Such an averment is an affirmation of a fact, and is not open to the objection that is a mere legal conclusion.” (21 Ency. of PI. & Pr. 1063.) But the plaintiff is not confined to this particular form of pleading. He may set forth the facts showing his title and right of possession. “Allegations respecting title, being averments of material and traversable facts, must be clear and precise; but certainty to a common intent seems all that is necessary, and it has been held that where the inevitable inference from facts alleged and from all the averments of the pleading construed together is that either realty or personalty is the property of a named person, the pleading is not demurrable by reason of failure to make a clear and specific averment of title.” (21 Ency. of PI. & Pr. 715.) “Where, however, the pleader sets forth specifically the links in his chain of title, a general allegation of ownership will be treated as a mere conclusion from the facts stated, and will not cure any defect in the chain relied upon.” (Gruwell v. Seybolt, 82 Cal. 7, 22 Pac. 938.) If the plaintiff undertakes to deraign his title and follows the facts stated, by the declaration that “thereby” or “by virtue thereof” the plaintiff became the owner, such • concluding declaration will not be treated as an allegation of ownership, but as the mere consequences flowing from the facts of deraignment set forth. (Turner v. White, 73 Cal. 299, 14 Pac. 794; 21 Ency. of Pl. & Pr. 719.) In other words, under such circumstances the concluding declaration does not add anything whatever of virtue to the pleading, but its sufficiency will be tested by reference to the facts set forth in the deraignment. As against a special demurrer for ambiguity and uncertainty, a complaint is not sufficient which merely alleges facts from which title in plaintiff may be inferable. If the direct allegation of ownership is not employed, then title in plaintiff, as distinguished from title in anyone else, must be the inevitable inference from the facts stated. (31 Cyc. 49, 81; 21 Ency. of Pl. & Pr. 716.)

It is true that the allegations of this complaint are not inconsistent with the idea of plaintiffs’ ownership: but that is not sufficient. As was said by this court, in Becker v. Commissioners, 11 Mont. 490, 28 Pac. 1116: “But, because the language of a pleading is not inconsistent with a state of facts, that is not alleging such state of facts. The complaint must allege the cause of action, and not simply set up matter which happens not to negative a cause of action. The cause of action must be found in the words of the complaint.”

The complaint alleges that Lloyd and Tower for a valuable consideration transferred and assigned their shares of stock, and the certificates representing the same, in blank, and delivered them to plaintiffs. There is' not any allegation that the consideration passed from the plaintiffs, nor that the eertifi■cates were delivered with the intent to transfer title to plain'tiffis; nor, indeed, that they were transferred or assigned to plaintiffs. For the sake of illustration merely, let us assume "that John Doe furnished the money to purchase these certificates and delivered it to plaintiffs with directions to them to purchase the stock for him; that plaintiffs undertook to do so ■ gratuitously; that they purchased the stock for Doe, paying Doe’s money for it, and that Lloyd and Tower each thereupon assigned his certificate in blank and delivered it to plaintiffs. Under such circumstances every allegation of this complaint would be literally true, and yet the stock would belong to • John Doe, and the plaintiffs would not have any interest in it whatever. This illustration is employed merely to show that ■ under possible circumstances the allegations of the complaint are just as consistent with the idea of ownership in some third per-son, as with the idea of ownership in plaintiffs themselves. “The pleader is not at liberty to leave his pleading open to - different constructions, and then take his choice between them. ’ ’ (Langsdale v. Woollen, 120 Ind. 78, 21 N. E. 541; 31 Cyc. 72.)

If the facts are that Lloyd and Tower, for a valuable consideration passing to them from plaintiffs, assigned their certificates in blank, and delivered them to plaintiffs for the purpose and with the intent of transferring ownership to plain- ■ tiffs, then the complaint could properly allege that Lloyd and Tower sold, assigned and transferred their stock to plaintiffs, ■ and those facts would fully sustain the allegation. There is not any excuse whatever for uncertainty in this pleading. In the complaint now under consideration plaintiffs have made their fourth attempt to state a cause of action which they ■could have stated by employing the general allegation of own•ership and right of possession, in common use in actions for ■conversion, or the form of allegation indicated above. The language employed by this court in Becker v. Commissioners, above, is applicable heré: “It was such a simple matter to allege these facts constituting a cause of action—the appellant had such abundant opportunity to allege them, if they were true—and as he refused to do so, apparently with deliberation, it would seem that the pleader considered that he had set out his alleged cause of action as fully as the facts warranted.”

We think the complaint is ambiguous and uncertain, and that the district court was fully justified in sustaining the special demurrer which pointed -out the objection we have considered. The judgment is affirmed.

Affirmed.

Mr. Chief Justice Brantly concurs.