A defendant who proceeds to introduce testimony after denial of
his motion for a verdict in his favor on the close of the
plaintiff's evidence in chief thereby waives his exception to that
denial.
A count in trespass
de bonis asportatis for the taking
and detaining of personal property can only be supported on the
theory that plaintiff was either its owner or entitled of right to
its possession at the time of the trespass complained of.
Page 153 U. S. 40
In an action of trespass
de bonis asportatis, the
plaintiff cannot recover as upon a count for money had and
received, at least without an amendment of the complaint.
Where a cause of action is not proven, not merely in some
particular, but in its entire scope and meaning, the courts treat
it not as a case of variance merely, but as an entire failure of
proof.
This was an action by the Haley Livestock Company against Wilson
and five others to recover damages for the forcible seizure on July
27, 1888, of 700 head of cattle and the extortion from the
plaintiff of $12,725.50 as a condition precedent to the defendants'
surrendering possession of the cattle to the plaintiff.
The answer of Wilson and Breeze, two of the defendants, denied
the incorporation of the plaintiff, as well as all the allegations
of the complaint, and set up in defense that Wilson, as Treasurer
of Routt County, and Breeze, as his assistant, seized these cattle
under a warrant for taxes for the year 1884 against one Ora Haley,
by which warrant defendant Wilson was commanded to make the said
sum of $12,725.50 out of the personal property of Haley, and by
virtue whereof he distrained upon these cattle, and detained the
same from July 27 to August 21, when Haley voluntarily paid the
amount due. During this time, defendant Wilson was enjoined by
Haley from selling them, and the cattle were properly cared for,
and in better condition than when seized. A similar answer was
filed by the other defendants.
Upon the trial, it appeared that articles of incorporation of
the Haley Livestock Company, under the laws of Iowa, signed by Ora
Haley and Samuel Hass, were filed for record in the county
recorder's office of Pottawattamie County, Iowa, on July 24, 1888;
in Carbon County, Wyoming, on July 30, and in Routt county,
Colorado, on August 10, and in the office of the Secretary of State
of Iowa on August 29, though nothing appears to have been filed in
the office of the Secretary of State of Colorado. The articles
provided for a capital stock of $300,000, divided into 3,000
shares; that the corporation should begin business on August 1,
1888, and that Haley should be superintendent and manager of the
company.
Page 153 U. S. 41
The cattle were seized on July 27 and released on August 21 upon
payment of $12,725.52. At this time, Wilson, as treasurer, executed
the following receipt:
"Yampa, Routt Co., Colo. Aug. 21, 1888"
"Received of Wilson Rankin for Ora Haley a certified check of
Frank X. Aicher on the German Notional Bank of Denver, Colorado. .
. . This payment, it is understood, is paid in full settlement for
the taxes of Ora Haley for the year 1884 under protest, and to
release cattle now distrained for said taxes."
Haley testified that the Haley Livestock Company became the
owner of these cattle about the 24th of July by purchase from one
Timothy Kinney; that Haley organized the company with a capital
stock of 3,000 shares, of which he owned 2,990, the remaining ten
shares being owned by four others; that the consideration for the
cattle "was somewhere near the capital stock of the corporation;"
that he (Haley) originally owned the cattle, and had sold them to
Kinney for about $300,000, taking his note and a chattel mortgage
for the amount; that subsequent to this seizure Kinney brought suit
in equity to enjoin the sale of the cattle for the taxes, upon the
hearing of which suit both Haley and Kinney testified that the
cattle were Kinney's property at the time of the seizure; that the
sale to Kinney was
bona fide, but that it was understood
from the beginning that just as soon as the company was formed, it
was to take the property, Haley being advised "that that was a
better method to get a corporation, and have the property conveyed
to it from a third party;" that the cattle were transferred to the
company for the purpose of litigating the taxes in the federal
court. Haley further testified that
"the minute the corporation had formed, and was in shape to
acquire title to it, it was the understanding between Hass, Kinney,
and myself that that property was to be the property of the Haley
Livestock Company again."
"Q. Then the delivery was a mental operation, was it not?"
"A. Yes; I expect it was. "
Page 153 U. S. 42
"Q. You heard your affidavit read, made on the 4th of August, in
which you testified that that property belonged to Timothy Kinney
and was then in his possession. Was that true, or was it
false?"
"A. Well, it was. He was one of the possessors. There had been
no formal delivery of the property; only this understanding with
the corporation."
It further appeared that about 1885, he obtained an injunction
against the collection of this tax, which was dissolved; that he
then obtained a second injunction, which was dissolved by the
supreme court, and the suit dismissed,
Breeze v. Haley, 10
Colo. 5; that he then obtained a third injunction, which was again
dissolved, and the suit dismissed,
Breeze v. Haley, 11
Colo. 351; that he thereafter obtained a fourth and a fifth
injunction, both of which were dissolved by the District Court of
Arapahoe county, Colorado; that he took one of these cases to the
Supreme Court of the United States,
Haley v. Breeze,
144 U. S. 130, and
that he obtained a release of the cattle under all these
injunctions except the last one.
The testimony of Wilson Rankin for the plaintiff was to the
effect that he was in charge of the cattle at the time they were
seized; that at the time of the payment, he demanded a receipt in
the name of the Haley Livestock Company, which was refused, and a
receipt taken in the name of Haley; that at the time of the
seizure, he was working for Kinney, and knew nothing about the
livestock company; that he got a check from Haley, and that the
first time he ever mentioned to Wilson or anyone else the name of
the company was when he asked for the receipt.
Defendants offered testimony tending to support the allegations
of their answer, produced the tax roll in evidence, and showed that
the livestock company was never heard of by them until the day the
taxes were paid and the cattle released.
The court submitted to the jury the question whether the money
was paid by the Haley Livestock Company or by Mr. Haley himself.
The jury returned a verdict for $5,266.92, upon which judgment was
entered, and defendants sued
Page 153 U. S. 43
out this writ of error, assigning as error certain questions
arising upon the admission of testimony and the charge of the
court.
MR. JUSTICE BROWN, after stating the facts in the foregoing
language, delivered the opinion of the Court.
We shall not find it necessary to dispose of all the errors
assigned to the action of the court below, as many of them are not
properly presented by the record.
1. Upon the conclusion of the plaintiff's testimony, defendants
moved the court to direct a verdict in their favor upon several
grounds, among which were that the organization of the plaintiff
corporation was fraudulent, and solely for the purpose of invoking
the jurisdiction of the federal court; that the property in
question was never conveyed to the plaintiff until after the
trespass was committed, and therefore it could not sue for the
same; that the pretended conveyances from Haley to Kinney and from
Kinney to plaintiff were without consideration and fraudulent, and
there had been no delivery of the property to the plaintiff prior
to the alleged trespass. The court denied this motion, and the
defendants excepted. They did not, however, stand upon their
exceptions, but proceeded to introduce testimony in their own
behalf, and thereby, as we have repeatedly held, waived their
exceptions.
Bogk v. Gassert, 149 U. S.
17,
149 U. S. 23.
Nor did they renew their motion upon the conclusion of the entire
testimony, as they might have done. This disposes of the third
assignment of error,
"that the court erred in overruling the motion of the
defendants, made at the conclusion of the evidence of plaintiff, to
instruct the jury to find a verdict for defendants."
As the fourth, fifth, and sixth assignments are only to the
opinion of the court in denying such motion, they must share the
fate of the third. In addition to this, however,
Page 153 U. S. 44
the reasons given by the court for its action upon the principal
motion are not the proper subjects of exception. If the exception
was improperly overruled, the reasons given by the court for its
action are of no consequence.
2. There was an exception taken, however, to the following
extract from the charge, which is also assigned as error,
namely:
"That if you believe from the evidence that this money was paid
over by the Haley Livestock Company, and not by Mr. Haley himself,
that then the plaintiff would have the right to recover it back as
having been exacted under circumstances which showed no authority
upon the part of Mr. Wilson to get it."
This charge must be taken in connection with the pleadings in
the case, and can only be justified upon the theory that,
consistently with the allegations of the complaint, plaintiff had a
right to recover if the money paid to obtain the release of the
cattle was paid by the Haley Livestock Company, and not by Mr.
Haley himself. It is true that this portion of the charge was
excepted to upon the ground that it assumed the invalidity of the
tax proceedings; but as it went to the foundation of the action, we
think it may be construed as raising the same question that was
raised at the conclusion of the plaintiff's testimony,
viz., the right to recover upon the allegations of the
complaint and the admitted facts of the case.
The gist of the complaint is contained in the fifth paragraph,
which is as follows:
"That on or about July 27, 1888, the defendants, by force and
arms, seized and took from the plaintiff about seven hundred head
of beef cattle, which were bunched up and were being driven to
market by plaintiff, and that after seizing and taking from
plaintiff said cattle, defendants drove said cattle great
distances, and kept them bunched together, and greatly injured said
cattle, and caused them to deteriorate and lose flesh, until on
August 21, 1888, plaintiff was compelled to pay defendants a sum
demanded by them of plaintiff, to-wit, $12,725.50, as a condition
precedent to defendants' surrendering possession of said cattle to
plaintiff."
This is, in its nature, a count in trespass
de bonis
asportatis
Page 153 U. S. 45
for the taking and detaining of personal property, and can only
be supported upon the theory that plaintiff was either the owner of
the cattle or entitled of right to the possession of them at the
time of the trespass complained of. 1 Chitty on Pleadings 189.
The allegation that plaintiff was compelled to pay defendants a
large sum of money to obtain the release of the cattle is, to all
intents and purposes, an allegation that plaintiff suffered this
amount of damages by reason of the unlawful seizure of its cattle,
in addition to the damages suffered in driving said cattle great
distances, keeping them bunched together, and causing them to
deteriorate and lose flesh. Now there is no evidence which would
justify a jury in finding that plaintiff was the owner, or entitled
to the possession, of the cattle until sometime after the 27th of
July, when the trespass is alleged to have been committed. By the
articles of incorporation of the Haley Livestock Company it was not
authorized to begin business until the first day of August, 1888,
and although these articles were filed in the county recorder's
office of Pottawattamie County, Iowa, as early as July 24, they
were not filed for record in the State of Colorado until August 10,
fourteen days after the trespass was committed. In addition to
this, it appears that in the suit in replevin instituted by Kinney
against these same defendants, Wilson and Breeze, to obtain
possession of these cattle, Haley, purporting to act as agent for
Kinney, made affidavit on August 4 that Kinney was the owner of and
was then lawfully entitled to the possession of the cattle in
question.
Notwithstanding this, Haley swore that the livestock company, of
which he himself was practically the sole incorporator, became the
owner of these cattle, on the 24th of July by purchase from Kinney,
though he admits there was no formal delivery or transfer of
possession. The truth seems to be that the company was organized
for the sole purpose of bringing this suit as a nonresident; that
Haley swore that the cattle became the property of the company on
about July 24 simply because the company filed its articles of
incorporation in Pottawattamie County, Iowa, upon that day; that
no
Page 153 U. S. 46
purchase was ever actually made of these cattle by the company,
at least until long after the date of the seizure, and, as Haley
admits, the delivery and sale were only a mental operation, and if
the company ever took title at all, it was long after the date of
the alleged trespass.
Clearly there was nothing in any of these transactions that
could give to the company the right to sue for the trespass
committed in the seizure of these cattle on July 27. The circuit
court held that the plaintiff had not acquired the title of
possession at that time, and hence could not maintain an action for
the seizure of the cattle and the loss accruing from that act. The
court was, however, of opinion that if it could assume that the
plaintiff paid the money for Kinney, or whoever was the owner of
the cattle at the time, to secure the release of them with the view
of acquiring property in them, it might maintain an action for the
money paid for that purpose; that the fact that the plaintiff was a
stranger to the proceeding to collect the taxes was not material,
and that, if the taxes were void, a stranger paying the amount for
the use of the person against whom it was levied would be able to
recover the money. We concur in its opinion that the plaintiff
could not maintain an action for the trespass, but we think it was
in error in holding that the plaintiff might continue the action
for the recovery of the money paid to obtain the release of the
cattle. As before stated, this was a mere item of the damages
occasioned by the seizure. The gist of the action was the trespass,
and if the plaintiff was not able to maintain that action, it fell
to the ground and carried with it all the damages incidental
thereto. We are not called upon to determine whether, under the
Code of Civil Procedure of the State of Colorado, the court might
or might not have permitted the action of trespass to be turned
into one for money had and received, and the plaintiff to recover
upon the theory that the cattle had, before the payment of the
money, become its property, and that such payment was made for the
purpose of obtaining its release, and was therefore not voluntary.
It is sufficient to say that we know of no system of pleading which
enables a party to declare in trespass
de bonis
asportatis
Page 153 U. S. 47
and, without at least an amendment of his complaint, recover as
upon a count for money had and received.
By section 78 of the Colorado Code of Civil Procedure, it is
provided that
"if, upon the trial of an action before the court or jury, the
evidence shall vary from the allegations of the pleadings, and
either party is surprised thereby, he shall be allowed, on motion
and showing cause therefor, and on such terms as the court may
prescribe, to amend his pleadings to conform to proofs."
No such amendment, however, was made in this case. While
undoubtedly, under the system of code pleading, a technical
variance between the allegations and the proof is not deemed
material unless the adverse party is prejudiced thereby, still,
where a cause of action or defense is not proven not merely in some
particular, but in its entire scope and meaning, it is treated by
the authorities of those states, not as a case of variance merely,
but as an entire failure of proof.
See Volkening v. De
Graaf, 81 N.Y. 268;
Decker v. Saltzman, 59 N.Y. 275.
In
De Graw v. Elmore, 50 N.Y. 1, it is held distinctly
that the Code does not authorize a recovery where the complaint
alleges facts showing a cause of action in tort by proving on the
trial a cause of action in contract. To the same effect are
Ross v. Mather, 51 N.Y. 108;
Walter v. Bennett,
16 N.Y. 250;
Belknap v. Sealey, 14 N.Y. 143;
Bernhard
v. Seligman, 54 N.Y. 661;
Barnes v. Quigley, 59 N.Y.
265;
Farmer v. Cram, 7 Cal. 135.
If in fact the cattle continued to be the property of Kinney or
Haley up to the time the money was paid, it is difficult to see
upon what theory a recovery could be permitted at all, since in
such case the payment by the Haley Livestock Company would be
wholly voluntary.
Lamborn v. County Commissioners,
97 U. S. 181,
97 U. S. 185.
If, upon the other hand, the cattle had become the
bona
fide property of a
bona fide corporation, it is
possible that such corporation might sustain an action for money
paid for the release of its property, even though it were organized
for the purpose of carrying the litigation into the federal courts.
Seeberger v. Castro, ante, 153 U. S. 32. The
difficulty in this connection is to find any tangible evidence
Page 153 U. S. 48
that the livestock company paid this tax or had any money with
which to pay it. The proof was that Haley borrowed of one Aicher
the money to pay these taxes, giving him his own notes for the
amount, while Aicher gave to him a check which he endorsed
personally, and handed to the county treasurer. The name of the
livestock company was not used in the transaction, and at this time
it had opened no books, had no money, and no account at a bank. In
fact, the Haley Livestock Company seems to have been a mere alias
for Haley. The fact that Haley may have intended to sell the cattle
as the property of the company, and pay his note to Aicher from the
proceeds, does not put the company in the position of an original
payer.
We think the court was in error in submitting to the jury the
question who paid these taxes, both because the pleadings did not
justify it and because there was no proper evidence that plaintiff
paid them. The judgment must therefore be
Reversed, and the case remanded for further proceedings in
conformity with this opinion.
