146 P. 473 | Mont. | 1915
delivered the opinion of the court.
Appeal by plaintiff from a judgment entered against him on a verdict of the jury, and from an order overruling his motion for new trial. His contentions are: That the verdict and judgment are not warranted by the evidence; that the court erred in certain rulings upon the exclusion and admission of testimony; that the court erred in refusing a certain offered instruction numbered 13.
The action is upon a contract entered into in February, 1912, incompletely evidenced by the following memorandum delivered to plaintiff by defendant: “This is to show that I have sold one car of oats to be loaded at Garrison at $1.15 per hundred. E. E. Hansen.” It was alleged by the plaintiff that he tendered defendant $100 as part payment and has been at all times “ready, willing, and able to do and perform all things” required
1. There was ample evidence to sustain the defendant’s
2. After the contract was entered into, and as part payment to insure the acceptance of the oats, plaintiff gave defendant
As to tbe inquiry, it could have been made of the State
3. Refusal of instruction No. 13 was entirely justified. It assumes a presentment of the check for payment at the Larabie
The judgment and order appealed from are affirmed.
Affirmed.