33 Mont. 394 | Mont. | 1906
delivered the opinion of the court.
This action was commenced in the justice of the peace court, where service of summons was had upon the defendant Kipp, but not upon the defendant McGovern. The complaint states a cause of action for $91.42 for goods, wares and merchandise sold by the plaintiff to the defendants. The defendant Kipp made answer denying generally the allegations contained in the complaint, and, as a further defense, set forth the fact that he is an Indian, resides on an Indian Reservation, has never severed his tribal relations, and that the goods sold by the plaintiff consisted of vinous and spirituous liquors. The plaintiff had judgment, and defendant Kipp appealed to the district court, where the plaintiff again prevailed; and from the judgment" entered therein and from an order denying him a new trial, defendant Kipp appeals to this court.
Three questions are directly urged upon our consideration: (1) Was there a fatal variance between the allegations' of the complaint and the proof adduced at the trial? (2) Was the defendant Kipp’s promise to pay for the goods invalid under the statute of frauds? and (3) Did the court err in excluding testimony and instructions offered by defendant relative to his status as an Indian?
Upon the trial in the district court the plaintiff offered evidence tending to prove that Kipp had brought McGovern to the plaintiff’s place of business "and had introduced him as a prospective customer, and had agreed to pay for such goods as McGovern might purchase, in case McGovern did not do so. This promise, if made, was not in writing and confessedly void under the statute of frauds. The evidence, however, further tends to prove that afterward plaintiff commenced an action against Kipp and McGovern to recover upon this same cause of action, and attached certain property belonging to Kipp;
On behalf of respondent it is said that, admitting that the variance is otherwise fatal, it was in this instance waived by the defendant Kipp by not objecting to the testimony when offered, and numerous cases are cited in support of this rule. But we think the rule is subject to this qualification: “provided the attention of the trial court is not directed to the variance.” In other words, the question of variance will not be considered when raised in the appellate court for the first time. (Southmayd v. Southmayd, 4 Mont. 100, 107, 5 Pac. 318; First Nat. Bank v. McAndrews, 7 Mont. 150, 158, 14 Pac. 763; Nyhart v. Pennington, 20 Mont. 158, 161, 50 Pac. 413.) But the variance is not waived if timely objection is made and the attention of the trial court directed to it.
The question, then, presented is: May such objection be made by motion for nonsuit? And this question is answered and the contention set at rest by the former decision of this court. (Wortman v. Montana Central Ry. Co., 22 Mont. 266, at 285, 56 Pac. 316; Johnson v. Moss, 45 Cal. 515.) In this latter case it is said: “No objection was taken to the testimony as it was introduced ; but the defendant was not thereby precluded from moving for a nonsuit, on the ground that it failed to prove the contract declared on.”
The contract sued upon was one under which the defendant Kipp purchased the goods described in the complaint. Becovery was had upon a contract made by the defendant Kipp subsequently to the time the goods were sold and delivered, by which he agreed to pay for the goods in consideration of the release of his property from attachment. Under the authority of McCormick v. Johnson et al., 31 Mont. 266, 78 Pac. 500, this promise was not within the statute of frauds. But it can
We are of the opinion that the court did not err in excluding the testimony, or in refusing to give the instructions, offered by the defendant, relative to his status as an Indian. Upon the theory of the case as presented by the plaintiff in its evidence, Kipp’s promise was founded upon a contract made subsequently to the time the goods were sold and delivered, and therefore it was immaterial whether he was an Indian or a white man, for the contract upon which recovery was had was not for intoxicating liquors sold to Kipp — a transaction unenforceable, if Kipp is an Indian maintaining tribal relations.
•As the testimony of the defendant did not aid the plaintiff’s case, we are of the opinion that the court erred in refusing to grant the nonsuit.
The judgment and order are reversed, and the cause remanded for a new trial.
Reversed and remanded.
