176 P. 152 | Mont. | 1918
delivered the opinion of the court.
Plaintiff brought this action to recover a balance of $1,290.45 alleged to be due on two promissory notes executed by defendants on July 19, 1913, with interest at the rate of ten per cent per annum from November 11, 1914, the date of the last payment, together with a reasonable attorney’s fee to be allowed as costs. The defenses interposed were a general denial of all the material allegations of the complaint, and three several counterclaims amounting in the aggregate to $1,089.07, upon which defendants claimed interest at the rate of eight per cent per annum from the respective dates at which it is alleged the several amounts became due. A trial to a jury of the issues framed by the complaint, amended answer and plaintiff’s reply resulted in a judgment for plaintiff for $567.22, with costs, including an attorney’s fee, taxed at $371. Thereafter the plaintiff moved
Counsel for defendants, assuming that the trial court granted the order on the ground that the evidence was insufficient to justify the verdict, have devoted their entire argument to an attempt to show that it was guilty of an abuse of discretion. After a careful reading of the somewhat voluminous evidence, we conclude that the argument is without merit. There was no substantial controversy that defendants were indebted to plaintiff in the full amount of the balance due on the two notes, less the items, with interest, which defendants could show they were entitled to recover under their counterclaims. Neither was there any controversy that defendants were entitled to recover the amount of their third counterclaim, with interest from July 19, 1913, the date at which it became due. This amount was $17.10. Therefore the questions at issue in the evidence to be resolved by the jury were, what amounts, if any, defendants were entitled to recover under the first and second counterclaims. The two principal items — $200 each — composing the first counterclaim, without allowance of one or both of which
Other small items of commissions on sales of extras and supply parts of machinery sold, amounting to $36.50, fall in
Several other small items aggregating $18.10, for expenses incurred in connection with machinery sold, apparently fall within the provisions of the dealer’s contract, and were not a proper charge against the plaintiff.
The defendant E. E. Hamilton executed the dealer’s agreement on August 27, 1912. The two remaining items are a charge for services alleged to have been performed for plaintiff by Hamilton at different times from July 1 to November 10, 1912, amounting to $348, and a charge for expenses for engineer’s services paid for by Hamilton at different times from August 23 to September 23, 1912, amounting to $105. Under the terms of the dealer’s agreement, Hamilton was not entitled to charge plaintiff for any services in setting up and adjusting machinery or fitting attachments, etc. Therefore, for the services rendered by Hamilton after August 27, he was apparently not entitled to make any charge. In any event, the burden was upon hinrto show that such services were rendered under a special agreement and not under the dealer’s agreement. Besides, the evidence was in conflict as to the extent and value of the services. These remarks apply also to the expenses incurred for
The second counterclaim alleged as a ground for recovery that during the year 1912 the plaintiff had accepted from Hamilton orders for money drawn by him on persons for whom he had threshed grain during the threshing season for that year, to the
This brief synopsis is sufficient to show that the court was not
The order is affirmed.
Affirmed.