18 Mont. 350 | Mont. | 1896
We are satisfied that the denial in the answer that £ ‘the amount of stock’ ’ had been delivered was a negative pregnant, for the reason set forth by the district court, and quoted in the statement preceding this opinion. The court was therefore justified under such a denial, in refusing to allow testimony as to the nondelivery of the stock. The court offered to allow counsel to amend this denial so that it would be well pleaded. Counsel refused to (Jo so unless they were also allowed to allege in their proffered second amended answer that certain matters mentioned in the statement above, other than the delivery of the stock, were also part of the consideration for the note. The court held that this was an attempt to vary the terms of a written instrument, viz, the contract of December 30th. This matter is the gist of the whole case. The note was given December 30th, 1889, and it was given in connection with the contract of the same date. Appellants contend that it is not varying the terms of a written instrument, to wit, the promissory note, to show, aliunde the note, what the real consideration was. Their counsel cites many authorities upon this point. This may be conceded. Then he proceeds to show the real consideration by pleading the contract of December 30th. This contract is admitted by the respondent. Then the next question is, what is the real consideration for the note, as shown by the written •contract? If the real consideration be shown by the contract of December 30th, then we have that contract as a written instrument in which to find the consideration. (Pitts v. Allen, 72 Ga. 69.)
We must therefore look to the contract of December 30th to ascertain the real consideration. Was that consideration the delivery of the stock, or was it the delivery of the stock and the performance of all the other terms of that contract?
The contract says, “In consideration of the premises and the sum of one dollar to each in hand paid, it is agreed, ’ ’ etc. Appellants make the point that all the agreements of the contract are in consideration of the premises. The premises are set forth in the recitals preceding the contractual portion of the instrument. Referring to the contract as set out in the statement of the facts preceding this opinion, it is observed that the recitals consist of statements of some facts, and of some desires of the parties. The facts recited are that Edgerton is the owner of 555-1,- shares of the railroad stock, and Sanford and Evans of 112-J- shares, and that it had been agreed that Power and Sullivan shall purchase of Edgerton one-half of his said shares, at the price of $8,000. After stating these facts, the recitals then set forth that it is desired by all parties that the stock owned by Edgerton and Sanford and Evans, and the stock purchased by Power and Sullivan, shall be voted as a unit, and that all of the parties shall act together and in harmony in the management of the railroad, etc. These facts and these desires of the parties being recited as premises, the contract goes on to state that in consideration of the premises the parties agree to certain things. What they agree to is set forth in a series of eleven paragraphs, numbered consecutively from first to eleventh. The first is as follows:
1 ‘ That said party of the second part agrees to sell to the said parties of the first part, and said parties of the first part agree to purchase of the said party of the second part, one- • half of said five hundred and fifty-five and one-half shares of capital stock at and'for the price or sum of eight thousand dollars, for which sum said parties of the first part shall give their note, payable to the order of the said party of the second part six months after the date hereof, with interest thereon at the rate of eight per cent, per annum from date until paid. ’ ’
W e are of opinion that the consideration of the note was the delivery of the stock, and perhaps, also, the entering into the further agreements, but not' the performance of the same. If the entering into the further agreements were also a part of
It is true that it is quite clear that the parties desired the accomplishment of all the matters set forth in the contract of December 30th, and in paragraphs following paragraph 1; and it is true that they also contracted for the accomplishment of their desires in that respect. But these matters could not be accomplished, nor, indeed,0 could they be intelligently contracted for, unless Power and Sullivan obtained the stock to put into the pool. The obtaining of that stock was a prerequisite to the accomplishing of the other matters set forth. To be sure, the accomplishment of those matters was within the. contemplation of the parties when they made the contract as to the stock. It may even be conceded that Power and Sullivan would not have bought the stock unless all the parties had consented that they would make an agreement for the accomplishment of the other matters. But Power and Sullivan did buy the stock, and they, with Edgerton, did make an agreement as to the other matters. It may probably be, indeed, conceded that the consideration of the note was the delivery of the stock, and the entering into the further agreements. Let it be understood that we say the entering into the further agreements, not the performing of them; that is to say, the promising to perform may have been a part of the consideration of the note, but the performing of the same could not. have been. Then the consideration of the note was paid, if the stock was delivered, and the further agreements were made; and on this construction of the situation, if the stock were not delivered or the further agreements were not made, the consideration failed. But the court offered to allow appellants to prove that the stock was not delivered, if they would make a proper allegation of this in cheir answer. That, as above noted, they declined to do, and, they declining to make this denial, the court struck out their proof.
That the further agreements were made was, in effect, in evidence, because the fact was alleged, and not denied by the
By reason of these views the j udgment and order of the district court must be sustained.
Affirmed.