127 P. 1019 | Mont. | 1912
delivered the opinion of the court.
On April 6, 1910, L. H. Drake & Son entered into a contract with the plaintiffs for the purchase of 2,500 lambs to be delivered between October 1 and 10 of the same year, and to be paid for at the rate, of five and one-half cents per pound. Upon the contract price there was paid- $750. On the same day, by an independent agreement, J. R. Randolph entered into a like contract with the plaintiffs for the purchase of a like number of lambs upon the same terms, and the like payment was made. When the time came for the delivery of the lambs, the purchasers were unable to raise funds sufficient to meet their respective obligations, and at a conference held in White Sulphur Springs between the plaintiffs, Randolph and L. H. Drake, Jr., representing L. H. Drake & Son, an arrangement was made by which the lambs were to be shipped to the Chicago market, consigned to Clay, Robinson & Company, livestock commission merchants, there to be sold, and the balance due plaintiffs upon the contract to be remitted to them. The lambs were all delivered at the same time and apparently shipped as one consignment. Randolph was unable to accompany the shipment, but it was
1. The evidence is very brief; so much so that it is difficult to determine the exact facts of the ease. The trial court outlined to the jury the facts so far as they were deemed uncontroverted;
It is wholly immaterial that these defendants received no consideration from Eandolph for assuming the entire indebtedness.
2. Over the objection of plaintiffs, L. H. Drake, Jr., was permitted to testify that, before he executed the note, he had a conversation with plaintiff Manger to this effect: “I told him it was understood I was only holden for half of it, and was merely giving it to him as a memorandum;.he said he understood that; he agreed to that.” Counsel for appellants then requested the trial court to charge the jury as follows: “If you find and believe from the evidence that there was a verbal agreement or
The court was clearly correct in refusing the offered instruction. The better practice would have been for the court to withdraw from the jury the evidence which had been erroneously admitted, but this result was accomplished indirectly by the refusal to give the instruction requested.
3. The trial court submitted to the jury the question whether
4. Error is predicated upon the refusal of the court to instruct the jury that the granting of a nonsuit in favor of defendant
If the result of this action is to impose a hardship upon these appellants, they have no one to blame but themselves. Whether they may recover from Randolph his just proportion of the loss incurred in the transaction is not a proper subject of inquiry in this case.
The judgment and order are affirmed.
Affirmed.
Rehearing denied December 5, 1912.