176 P. 609 | Mont. | 1918
delivered the opinion of the court.
The trial of this cause in the district court resulted in a verdict and .¿judgment in favor of plaintiff. Defendant has appealed from the judgment and order denying him a new trial.
The complaint contains two counts. The first alleges that on June 3, 1913, the plaintiff sold and delivered to defendant, at his special instance and request, on his farm in Gallatin county (described as “See. 15, Tp. 2 S., R. 2 E.”), hay and grain of the reasonable value of $91, no part of which has been paid. The second alleges that between June 4 and October 2, 1913, the plaintiff furnished the defendant on his said farm, at his special instance and request, work of himself and his horses in preparing the land for a crop for the season of 1914, of the reasonable value of $783, no part of which has been paid.
The defendant in his answer joins issue on both counts, and alleges as an affirmative defense, by way of a counterclaim, the following: That on October 23, 1911, the plaintiff entered into a contract with one Berglund, now deceased, wherein the latter agreed to convey to the plaintiff the farm described in the complaint, upon these conditions: That plaintiff should pay Berglund therefor, at the Manhattan State Bank of Gallatin county, $25,600, $800 upon the execution of the contract, and the balance in ten equal annual installments on or before November 1st of each year, from 1913 to 1922, inclusive, with interest at seven per cent per annum on the sum remaining unpaid from time to time, except that plaintiff should have the privilege of
Counsel assails the validity of the judgment on the grounds that the trial court erred to the prejudice of the defendant in certain rulings upon questions of evidence during the trial, in submitting instructions to the jury, and denying defendant a new trial because of the insufficiency of the evidence to justify the verdict.
Upon a careful consideration of the several rulings upon questions of evidence we have found no prejudicial error in any of them. Ye therefore pass them without special notice.
In paragraph 2 of its charge the court instructed the jury as follows: “You are instructed that the defendant set up a counterclaim in this action for unpaid interest due under the contract between plaintiff and Peter A. Berglund, dated October 23, 1911, for the sale to the plaintiff of section 15, township 2 south of range 2 east. The defendant admits the execution of this contract, and that on the fifteenth day of May, 1913, the defendant, F. L. Benepe, became the owner and holder of said contract, and that he was on said date, and ever since has been, the owner of all the right, title, and interest in and to the real estate described in said contract, being section 15, in township
It being admitted in the reply that plaintiff was in default in the payment of interest, and it being shown by defendant’s evidence without dispute that he had paid the taxes for the year 1912, counsel insists that this instruction was in effect a peremptory direction to the jury to find for the defendant, and that, since the jury manifestly disregarded it, the defendant is
Counsel for plaintiff, to avoid the consequences of the rule announced in these decisions, has incorporated in the statement of the case his exceptions to the order of the district court overruling his demurrer to defendant’s counterclaim, and an order denying his motion for a nonsuit thereon at the close of defendant’s evidence, and invokes the provisions of section 7118 of the Revised Codes, which declare: “Whenever the record on appeal shall contain a bill of exceptions or statement of the case properly settled, setting forth any order, ruling or proceeding of the trial court against the respondent affecting his substantial rights on the appeal of said cause, together with the objection and exception of such respondent properly made and reserved, settled and allowed in such bill of exceptions, or statement, the supreme court on such appeal shall consider such orders, rulings or proceedings, and the objections and exceptions thereto, and shall reverse or affirm the cause on said appeal according to the substantial rights of the respective parties, as shown upon the record. And no cause shall be reversed upon appeal by reason of any error committed by the trial court against the appellant where the record shows that the same result would have been attained had such trial court not committed an error or errors against the respondent.”
These two orders were clearly erroneous. It is manifest that,
When we come to examine the evidence, however, we are constrained to the conclusion that it is not sufficient to justify the verdict. Plaintiff was the principal witness in his own behalf. His testimony is vague and indefinite. On his examination in chief he testified, in substance: That he had retained possession of the land purchased under the Berglund contract from the date of the contract until June 3, 1913; that on that date he turned the land over to the defendant; that thereafter he worked for defendant and under his directions; that he used all his horses in the work; that he, along with other men hired by defendant to assist him in preparing the land for a crop for the following year, fed the hay and grain referred to in the complaint, and when that was exhausted they bought more to feed his and other horses furnished by the defendant; that defendant told him to feed this and then buy more; that this was done for defendant because he |iad nothing to do with the land after June 3. Questioned as to who requested him to
Peter Yan Dyken, the only other witness who testified for plaintiff, after being questioned as to the prevailing rate of wages for men and the rate paid for horse hire, stated that he had a conversation with defendant about July 13, when the witness was employed by him to assist the plaintiff, during which, in answer to an inquiry by witness if the plaintiff “had thrown up the place,” the defendant said he had. Nowhere in the evidence does it appear that plaintiff then or thereafter surrendered the Berglund contract to defendant, or that he ever offered to do so, or that he offered to surrender possession of the land.
This testimony was not aided in any way by that of the defendant. On the contrary, the testimony of the defendant controverted that of the plaintiff and his witnesses, and tended to establish the agreement set out in the counterclaim.
Plaintiff brought his action in assumpsit instead of on the
That the special agreement was entire is obvious from the fact
Upon the facts disclosed by the record we do not find any merit in the several other assignments made by counsel.
The cause is remanded to the district court, with directions to grant a new trial.
Beversed and remanded.