213 P. 1087 | Mont. | 1923
delivered the opinion of the court.
In his complaint plaintiff alleged that on February 4, 1921, he sold and delivered to defendant twenty-four head of cattle at the agreed price of $1,813.79, and that defendant failed and refused to pay for the same. By its answer the defendant admitted that plaintiff sold and delivered to it the twenty-four head of cattle described in the complaint, but denied that there was anything due on the purchase price, “as more fully appears in the affirmative defenses and counterclaims hereinafter set forth.” It then set forth two counterclaims. By the first it alleged that on January 20, 1919, plaintiff contracted to sell and deliver to it 150 head of “strictly fat two and three year old steers” at $13.50 per ewt., the cattle to be delivered at Butte between April 1 and April 10, 1919; that defendant paid plaintiff $1,000 as part of the purchase price; that plaintiff failed to deliver or tender cattle of the hind or quality specified, and failed and refused to refund the $1,000 or any part thereof. In the second counterclaim defendant set forth the same facts and alleged that, by reason of plaintiff’s failure to deliver the hind and quality of cattle mentioned, defendant lost profits amounting to $4,221.68.
In reply plaintiff admitted that he entered into the contract of January 20, 1919, that he received from defendant $1,000 on account of the purchase price, and that he had not repaid any part of it. All other allegations of each counterclaim were denied.
The trial of the cause resulted in a general verdict for plaintiff for the amount demanded, and judgment was entered thereon. From this judgment and from an order denying a new trial defendant appealed.
So far as the verdict finds for the plaintiff upon his cause of action and against the defendant upon its second counterclaim, no fault is found with it. These appeals present the defendant’s contention that it was entitled to recover upon its first counterclaim and was entitled to have the amount thereof
The court refused defendant’s offered instruction No. 16, to the effect that from the amount to which plaintiff was entitled to recover for the twenty-four head of cattle there should be deducted $1,000, with interest from January 20, 19-19. There was not any evidence that plaintiff was damaged by reason „ of defendant’s refusal to accept the 150 head of cattle, so that the refusal of the court to give defendant’s offered instruction No. 16 fairly presents the question now urged upon this court.
The general verdict was equivalent to a finding in favor of
The defendant’s first counterclaim is in effect a complaint by
Counsel for defendant urge that the rule should not be enforced with the same vigor when applied to contracts for the sale of personal property as when applied to contracts for the sale of real estate, but there is not any merit in this contention. The rule was applied to a contract for the sale of personal property in Clifton v. Willson, above, and was recognized as applicable to such a contract by the supreme court of Oregon in Hanley v. Combs, 48 Or. 409, 87 Pac. 143. The rule as applied to contracts for the sale of personal property is stated in 35
The rule applies to contracts generally and the obvious reason for its existence is that it is the policy of the law to foster the observance of contracts, and not to offer a premium for their violation. Since by the verdict it has been determined that plaintiff was without fault, and that defendant was guilty of a breach of the contract in refusing to accept the cattle tendered, it follows that defendant must now predicate its right to recover upon its own wrongful act, and this it may not do. (Gibbons v. Hayden, 3 Kan. App. 38, 44 Pac. 445.)
Finally it is contended by counsel for defendant that section
The general rule announced above was the rule recognized and enforced at common law. Courts of equity early departed from it, and in many instances relieved parties from forfeitures or losses in the nature of forfeitures. However, the relief was uniformly refused if the defaulting party’s violation of the contract was the result of gross negligence or was willful and persistent, and this upon the theory that he who asks aid from a court of equity must himself be free from inequitable conduct with respect to the same subject. (1 Pomeroy’s Equity Jurisprudence, 4th ed., secs. 51, 452.) This equitable doctrine, in substance at least, has been transferred quite generally into
In Donlan v. Arnold, above, this court said: “In Clifton v. Willson, 47 Mont. 305, 132 Pac. 424, attention was called to the rule at common law which denied recovery for payments made or acts done by one who has stopped short of full performance of his contract, and to the circumstance that whenever relief was attainable it became so by virtue of the rule of equity against forfeitures; that the rule against forfeitures, so far as this state is concerned, is expressed in section 6039 of our Codes, and a party seeking its benefit must by his pleading and proof bring himself within it.”
In Clifton v. Willson, above, the section was construed as follows: “By its terms it applies to those eases in which a plaintiff has incurred a forfeiture of payments already made or of the value of some act done in part performance of the contract, by a breach in failing fully to perform, and is seeking relief therefrom. It is based upon the principle that he who seeks equity must do, or offer to do, equity; and to obtain relief he must by his allegations and proof bring himself within its purview. s"! * * Manifestly, therefore, the purpose of the section is to provide a remedy by which the party in default may have relief, if he can allege and prove facts and circumstances upon which, in equity and good conscience, he should have relief from the consequences of his own default, and which also excuse him from the imputation of gross negligence, or willful or fraudulent breach of duty.”
Again, in Fratt v. Daniels-Jones Co., above, the same section came under consideration, and concerning its provisions we said: “Whatever may be the correct interpretation of the language of that section, this much is apparent: The very minimum requirement is that the party invoking the protection afforded by that section must set forth the facts which will appeal to the conscience of a court of equity.”
In Suburban Homes Co. v. North, above, the same doctrine was announced as follows: “One who has been guilty of a
Under that rule it is altogether immaterial that the contract here involved does not provide specifically for a forfeiture of the money advanced. (Clifton v. Willson, above.) Defendant did not invoke the provisions of section 8658 in the court below and may not do so now.
In Clifton v. Willson it was the plaintiff who sought to recover payments made upon a contract to purchase sheep, and concerning the case made by Mm this court said: “While he is seeking to recover his advance payments as a part of the compensation due him, the plaintiff assumes to stand strictly upon his legal rights, risMng his chance of ultimate recovery exclusively upon his alleged ability to show that his loss has been due to defendant’s failure to deliver the ewes according to his agreement.” So likewise in this instance defendant did not plead or offer to prove any facts tending to relieve it from the consequences of its own fault, but stood strictly upon its legal rights, risking its chance of recovery upon its ability to satisfy the jury that plaintiff failed to tender cattle of the kind and quality described in the contract of January 20, 1919. Having failed in this respect, it failed to make out its counterclaim.
The instructions given presented the issues fairly, and the court did not err in refusing to submit defendant’s offered instruction No. 16.
The judgment and order are affirmed.
\A.jfirmed.