215 P. 803 | Mont. | 1923
delivered the opinion of the court.
This action was brought upon a promissory note for $100, dated September 21, 1920, and due January 1, 1921. In the amended answer it is alleged that the note was executed and delivered under and in pursuance of an alleged trust agreement, dated August 7, 1920, and not otherwise; that the trust agreement never became operative, and that the note is without consideration. In an amended reply plaintiff denied that the note was executed and delivered solely in pursuance of the terms of the trust agreement, and further pleaded facts by which it was sought to avoid the special defense interposed. The trial of the cause resulted in a verdict for plaintiff. A new trial was denied, and defendant appealed from the judgment.
The only errors assigned are predicated upon the refusal of the trial court to give five instructions tendered by the defendant. In each of the first four of these offered instructions the court was requested to charge that it was admitted that the note was executed and delivered under and in
If the trial court had given these instructions, or any of
The agreement reads as follows: “Know all men by these presents, that we, the undersigned stockholders in the Cooperative Publishing Company of Kalispell, Montana, which said company are the owners of that certain newspaper known and designated as the Kalispell Bee, which said paper is at this time a weekly newspaper published in Kalispell, Montana, being aware of the fact that it takes money to operate a newspaper plant and being desirous of making a success of said newspaper, and also being cognizant of the fact that the income from said newspaper plant may not be sufficient at times to take care of and pay any and all debts that might accrue against said business hereby guarantee the sum of $3,000 for the operating of said newspaper from the date hereof until the first day of January, 1921, said sum to be paid at once by cash or bankable note into the hands of ~W. C. Berne, Trustee, who has been named and designated by the directors of said Co-operative Publishing Company and which said sum or any portion thereof shall be at any and all times between the date hereof and the said first day of January, 1921, at the disposal and use of the said manager of said newspaper, with the approval of said trustee, for the use and benefit and for operating said newspaper plant to at any time draw upon said trustee for such sum or sums of the said $3,000 as he may deem necessary for said purposes and we hereby direct and authorize said trustee to honor and pay over to said manager such sum or sums of said $3,000 as he may from time to time require for the successful operating of said newspaper and plant between the date hereof and the first day of January, 1921. It is further understood that any portion of said sum of $3,000 remaining in the hands of said trustee on the first day of January, 1921, shall be returned to the parties hereto advancing the same prorated. Stock to be issued for any part of this fund used. This contract and
“Dated this 7th day of August, 1920.”
Defendant insists that the agreement never became effective: (1) Because each subscriber did not at once deliver to plaintiff the amount of his subscription in cash or its equivalent, a bankable note; and (2) because the agreement was not signed by thirty persons, each of whom was a stockholder of the Cooperative Publishing Company at the time the subscription was made.
1. "While it is true that the agreement provides that every
2. Defendant contends that the agreement was to become effective only when signed by thirty persons, each of whom was a stockholder at the time he attached his signature. For the purpose of illustrating this contention, the agreement may be paraphrased as follows: The undersigned stockholders of the Co-operative Publishing Company guarantee the sum of $3,000 for the use and benefit of and for operating said newspaper plant, this agreement to be in full force and effect when
It is possible to suggest three distinct constructions to be placed upon the language above: (a) That the agreement should be signed only by persons who .are stockholders at the time the writing was prepared, or (b) that the stockholders guaranteed to raise $3,000 by subscriptions obtained from any available source, or (c) that the writing should be signed by persons who were or were to become stockholders. But speculation is unnecessary. The cause was tried in the district court upon the theory that the agreement was uncertain or ambiguous, and defendant himself first introduced evidence as to the intention of the parties. He testified: “I gave this $100 note under this agreement. The consideration was supposed to be that the agreement here would be signed by thirty stockholders of the Co-operative Publishing Company.” On cross-examination he testified: “We are not seeking to raise $3,000 among stockholders and prospective stockholders. "We were seeking to raise it among stockholders.” In rebuttal plaintiff testified that the agreement was signed by thirty persons; that some of them were not stockholders at the time the subscriptions were obtained, but all were stockholders at the time of the trial. He testified further that after twenty-nine subscriptions were obtained he submitted the agreement to defendant, who examined the list of subscribers and then attached his signature as the thirtieth subscriber and made no objection that some of the subscribers were not stockholders. John Kennedy, a witness for plaintiff and one of the subscribers to the agreement who was not a stockholder prior to the time he signed, testified that he was solicited by plaintiff, a Mr. Small, and defendant Stevens to become a stockholder and subscriber; that after he attached his signature he was asked to give his note for the amount of his subscription, but declined to do so and sent Ms check to plaintiff and later
3. Finally, defendant contends that he should not be held
There are some palpable inconsistencies in the testimony introduced by plaintiff, but these reflect only upon the weight to be given to the evidence in its entirety.
The jury having resolved all controverted questions in favor of plaintiff, and the evidence appearing to be sufficient to sustain the verdict, the trial court did not err in refusing a new trial.
The judgment is affirmed.
Affirmed.