142 P. 641 | Mont. | 1914
delivered the opinion of the court.
Action to recover the unpaid balance of the purchase price of a certain gasoline lighting machine installed by the plaintiffs in the Luzon Cafe at Billings, under a written contract made with the defendant company on September 2, 1911. The price stipulated was $315. The complaint alleges performance of the contract by the plaintiffs, and nonperformance by the defendant company, save that it accepted the machine and paid '$78.75 thereon.
The answer admits the payment of $78.75 on the machine, denies all the other allegations of the complaint, and alleges affirmatively that the contract was entered into solely upon the representations that the machine “could be run at a given expense for a given length of time,” and without refilling with gasoline in the night-time; that the.machine has to be refilled with gasoline at night in order to supply the lights required in the business of the defendant company, and that, in consequence of this, the said plant is useless and had to be abandoned. An alleged counterclaim is also set forth, to which attention will be hereafter directed.
The cause was tried to a jury and the issues were found against the plaintiffs, the defendant company also being awarded $78.75 upon-its counterclaim. From the judgment entered upon the verdict and from an order denying a new trial plaintiffs have appealed. Twenty-three alleged errors are assigned, and these we shall group and consider as follows:
Assignments- I, VI, XI and XII question the propriety of certain rulings admitting evidence touching the effect of the lighting plant upon the defendant company’s insurance. The
The rulings presented by assignments V, YII and VIII are of like character. By them the defendants were permitted to prove
Assignments II, III, IY, IX and X also relate to rulings upon evidence; but we find no prejudicial error in any of them. Under them, however, as well as under all the other assign-
The sufficiency of the evidence as a whole is presented by assignment XXII. No good purpose would be served by discussing this matter at length. Three questions of fact were presented, viz.: Whether the contract was made upon plaintiffs’ representation of the machine as capable of running all night without refilling; whether the plaintiffs installed the machine called for by the contract; and whether there was an acceptance of the machine by the defendants. Upon the first of these propositions the evidence was in irreconcilable conflict; upon the second there was a bare technical sufficiency; and upon the third, it is sufficient to say that an acceptance of the machine with knowledge of the particular defect in question is very strongly suggested by the testimony. Of course, if there
It is contended, however (assignments XX and XXI), that
Assignments XIII, XIV, XV and XVI complain of refusal of the court to instruct the jury conformable to plaintiffs’ requests Nos. 3, 4, 9 and 10, respectively. All of these, with the exception of No. 9, were properly refused. No. 3 because it was misleading; it restricted the jury to the written contract and in effect excluded the real defense that the outfit did not meet the representations upon which the contract itself was procured.' The objection to No. 4 is that under it retention
Assignments XVII, XVIII and XIX relate to the giving of instructions 8, 9 and 10. These instructions are not open to the objections stated in the record.
The judgment and order appealed from are reversed and the cause is remanded for a new trial.
Reversed and remanded.