149 P. 286 | Mont. | 1915
delivered the opinion of the court.
The complaint alleges, in substance, that on April 1, 1913, the defendant sold to the plaintiff 145 bushels of wheat for spring seeding, warranting said wheat to be spring Fife wheat; that after properly preparing the ground, plaintiff properly sowed the wheat upon ninety-seven acres and used care and diligence to make the same produce a crop; that said wheat did not produce a crop because it was not spring wheat, but fall wheat, and was therefore worthless and of no value to the plaintiff; that he did not know and could not ascertain, prior to the summer of 1913, that the wheat was not spring Fife wheat as warranted, but that defendant knew or could with reasonable diligence have ascertained that fact when he delivered said wheat to the plaintiff. The complaint then fixes the damages in gross at $683.50, and in paragraph X avers: “That on said ninety-seven acres of land, there sprang up and grew this year [1913], a thin, scattering crop of spring wheat which plaintiff believes was from seed scattered to the ground during the harvest of 1912, which plaintiff has carefully cut, stacked and threshed, which is of the reasonable value of $181.13, to which amount the defendant is justly entitled to credit.” Judgment is asked for $502.37. After answer and trial upon the merits, judgment for the plaintiff for $300 was entered on the verdict of the jury. From that judgment this appeal is taken.
But one question is presented, viz.: Does the complaint state
As to the second: Paragraph X does not admit that the scattering crop came from defendant’s seed, bnt avers, in effect,
The judgment is affirmed.
'Affirmed.