185 P. 771 | Mont. | 1919
delivered the opinion of the court.
This action was brought to recover upon a promissory note and to foreclose a mortgage given to secure the payment of it.
The complaint sets forth a copy of the note and certain provisions of the mortgage for the breach of which the owner and holder of the note was authorized to commence action thereon prior to the due date mentioned in the note; alleges the execution of the note and mortgage by the defendants to the Charlos Heights Orchard Company, the assignment of them to plain
Upon trial, plaintiff made formal proof of her ownership of the note and mortgage, and introduced the note with the indorsements thereon in evidence. Defendants then offered in evidence the mortgage, to which plaintiff objected, and before the objection was ruled upon they made an offer to prove that the note and mortgage were executed and delivered as part payment of the purchase price of the land described in the mortgage; that when the note and mortgage were executed, certain representations were made by the mortgagee (Orchard Company) to the defendants, which operated as inducements to them to execute the documents and without which they would not have been executed, and that such representations were false; that contemporaneously with the execution and delivery of the note and mortgage there was executed an instrument in writing by the terms of which the mortgagee agreed to plant the land to apple trees and care for, cultivate and irrigate the same for five years, and to convey a certain, definite water right for the irrigation of the land, and that “each and all of these contracts were broken by the mortgagee” before the assignment to plaintiff. Upon objection by plaintiff, this offer was rejected and, defendants having rested, the cause was withdrawn from the jury and a judgment in favor of plaintiff rendered and entered. From that judgment defendants appealed.
Counsel devote much of their briefs to a discussion of the' proposition: Is the note involved negotiable? But this argument is beside the question. For the purpose of this appeal it may be conceded that the note is- non-negotiable and that defendants may interpose any defense which they could have interposed to a suit by the original payee; still, if they did not
1. There are allegations in the answer to the effect that at
2. If we assume, without deciding, that the allegations of the answer are sufficient to disclose failure of consideration, still the ruling of the court was correct for the following reasons:
(a) Since defendants had failed to plead fraud, their
(b) Defendants did not call or offer to call any witness by
(e) The offer did not contain a statement of the facts
The offered evidence did not prove or tend to prove any defense, and for this reason the ruling excluding it was justified.
The judgment is affirmed.
Affirmed.