Heffron v. Thomas , 61 Mont. 10 ( 1921 )

MR. JUSTICE COOPER

delivered the opinion of the court.

This appeal is from an order of the district court of Silver Bow county dissolving a writ of attachment. From the allegations of the complaint it appears that on the third day of December, 1920, the plaintiff purchased of defendants a seven-passenger Dodge automobile, took it into his immediate possession and paid therefor the agreed price of nine hundred dollars. On the eighteenth day of January, 1921, in an action brought by one Bertha Brosinke in claim and delivery, against the plaintiff, it was taken from his possession by the sheriff of Silver Bow county under process in his hands. It is alleged that the defendants assumed to have the lawful right to sell and to transfer the title and ownership of the automobile, when in,fact they did not have title thereto; and that the plaintiff has been damaged in the sum named. The prayer is for the purchase price and interest from the date of sale. A writ of attachment was issued and levied upon the funds of the defendants, deposited with the First National Bank of Butte.

Appellant insists in argument that the suit was brought [1] to rescind the executed sale and to recover the purchase price because of a breach of warranty of title. The nature of the action is to be determined upon the complaint alone. (Kyle v. Chester, 42 Mont. 522, 37 L. R. A. (n. s.) 230, 113 Pac. 749.) By the same token the inquiry into its sufficiency “to sustain the attachment may not go farther than to ascertain whether the action is upon a contract, express or implied, for the direct payment of money.” (Union Bank & Trust Co. v. Himmelbauer, 56 Mont. 82, 181 Pac. 332.) From the com-[2] plaint it is plain that the transaction involved nothing more than a sale at a stipulated sum, payment and delivery of possession. The warranty implied by law was that the title of the defendants was then good and unencumbered. (Rev. Codes, see. 5105.) For a breach of warranty of title to personal property, section 6060 of the Revised Codes fixes the damages which may be recovered as “the value thereof to the buyer when he is deprived of its possession, together with any costs which he has become liable to paj in an action brought for the property by the true- owner.” To this the plaintiff is limited. As set forth in the complaint, the transaction was not an agreement by which was acknowledged an unconditional obligation to repay to plaintiff the purchase price of the machine, with interest from date of sale — in other words, a contract, express or implied, for the direct payment of money, upon which an attachment is authorized by the provisions of section 6656 of the Revised Codes. i (Ancient Order of Hibernians v. Sparrow, 29 Mont. 132, 101 Am. St. Rep. 563, 1 Ann. Cas. 144, 64 L. R. A. 128, 74 Pac. 197; Beartooth Livestock Co. v. Grosscup, 57 Mont. 595, 189 Pac. 773; Carter v. Bankers’ Ins. Co., 58 Mont. 319, 192 Pac. 827.)

Rehearing denied November 7, 1921.

The order appealed from is affirmed.

Mr. Chief Justice Brantly and Associate Justices Reynolds, Holloway and Galen concur.