106 P. 882 | Mont. | 1910
delivered the opinion of the court.
The complaint in this action alleges that in the year 1907 the plaintiff sold to one Arthur Durand goods, wares, and merchandise of the value of $786.95; that thereafter the defendants, as copartners, agreed to pay plaintiff the said sum of $786.95 upon consideration that the plaintiff would cancel the obligation of Durand to pay such sum, and release said Durand from all liability on account thereof; that plaintiff accepted said promise of defendants as a substitute for the original promise of Durand to pay for said goods, and canceled the original obligation of Durand and released him from all liability thereunder; that on the thirtieth day of August, 1907, defendants paid the sum of $75 cash, in pursuance of the aforesaid agreement, leav
The testimony shows that McDonald & Pelette had a contract for grading a section of the Chicago, Milwaukee and St. Paul Railroad Company of Montana, in Madison county, and that they sublet a portion of the work to Arthur Durand; that Durand had an account with plaintiff, and thereafter purchased of him certain hay, oats, bran, salt, and flour, to the amount of the sum mentioned in the complaint. Durand testified that he afterward had difficulty with one King, who was in charge •of the horses with which the work was being done, and, on .account thereof, he surrendered his contract to McDonald and Pelette and delivered to them the hay, oats, and other supplies which he had left on hand; that McDonald took a list of the -property and placed a valuation upon the same. This witness said: “I asked McDonald if he would let me quit .and take the stuff. He said he would. I said: ‘All the bills I made down here on this contract I want you to pay them, and then what’s left I want you to turn the money to me.’ He .said: ‘All right, sir.’ He said that he would, and, if anything was left, he would pay it to me. Prior to this time I had a talk with McDonald 'and Pelette about the amount owing to McAllister. They knew how much I owed McAllister. I asked McDonald to let me have a check for about $350. I says, ‘Make it to McAllister’—on the 1st of June, I believe, or 26th of May. He said he would. I had asked them a couple of times before for a check for McAllister, to send it to him, because he was writing me to get some money. McAllister came down there -afterward. I had wrote to him and told'him. I wrote him what .McDonald told me. In response to that letter McAllister came
“ ‘McDonald’s Camp, Lime Spur, June 12, 1907.
“ ‘I hereby agree not to hold McDonald & Pelette responsible for any portion of the nine hundred and sixty and no/100 ($960.00) dollars for supplies and implements sold to John King for the purpose of grading on C., M. & St. P. Ky., that they will not be able to collect from him through his work on C., M. & St. P. Ky.
“ ‘ [Signed] Arthur Durand/
“I did not sell anything to King. I sold it to McDonald. I signed the paper you have just shown me, because three days after I sold him the stuff he came back and asked me to sign it. He kept after me, and then finally said he could get kind of a settlement quicker with the surveyor if I signed it. I objected to signing it for fifteen minutes. I did it because I thought he would keep his word. The supplies mentioned were the supplies I have said I sold to McDonald & Pelette, and the money was the money I was expecting to receive from McDonald. I do not know whether I made any money on my contract or not. I quit because King was going to quit with his horses. I had no talk at all with King about taking over my contract. McAllister wrote to me to get him some money. I might write back what McDonald wrote me—let me have a cheek or send him a cheek. McDonald did not say that, if there was anything coming tome, he would pay it over to McAllister. I asked him for $350. He said he would let me have it. I thought it was coming to me. I did not think he would let me have the money unless
“Q. I just asked you what Pelette said to McAllister? A. He said he would send the check on Monday or Tuesday following, and he said he would pay the balance later.
“Q. What indebtedness was he talking about? A. About what I owed McAllister.
“Q. And what further was said at that time between Mc-Allister & Pelette ? A. That is all I heard myself.
“Q. You didn’t hear anything further? A. No, sir; not that I remember.
‘ ‘ Q. Mr. McAllister did not tell Mr. Pelette that he was going to look to him entirely for the money, and not to you, did he? A. He did; yes, sir.
“Q. And then Pelette said further they would stand good for the money and let you go? A. Never mentioned my name at all, not after I asked him. I asked him if he remembered I asked him for a $350 cheek. I sent an order to McDonald & Pelette every time there was a bill to pay. They were to pay my orders out of any money coming to me. I signed the following document:
“ ‘Butte, Montana, June 17, 1907.
“ ‘McDonald & .Pelette: Please pay to W. E. McAllister eight hundred and forty-two and 25/100 ($842.25) dollars payment to be made as fast as the money becomes due to Arthur Durand. Indorse all payments on this order and I will receipt for same.
“ ‘W. E. McAllister.
“ ‘Arthur Durand.’
“Mr. McAllister gave me that.
“Q. And you signed it before he did? A. He made it out before me, and I signed it.
“Q. You had already signed the order for McDonald to pay you any money from King on June 12, hadn’t you? A. Yes, sir.
‘ ‘ Q. And a moment or two ago you said you quit before that ? A. I quit two days before that.
“Q. Before you signed this order, and before you came to town, McAllister had been out there, and had a talk with you and Pelette, hadn’t he? A. Yes, sir.
“Q. And yet on June 17 you were giving an order on McDonald & Pelette to pay McAllister as the money came due to you? A. I signed two orders then.
“Q. I hand you another order, and ask you if you signed that one? A. Yes, sir; that is the one I was referring to. It is as follows:
“ ‘Lime Spur, Montana, July 10, ’07.
“ ‘To Alex McDonald & ¥m. Pelette:
“ ‘Please pay W. E. McAllister of Butte, Montana, the sum of $842.40 out of any moneys that may come into your possession and belonging to me upon contracts, subcontracts or in any other manner whatsoever, and charge the same to my account..
“ ‘Arthur Durand.’
“Mr. Fitzgerald, attorney for the plaintiff, wrote that Mr. McAllister had it in his hand. After I signed it, I handed it to McDonald, or Fitzgerald did, one or the other. I did not know how much money was coming to me. I never did know. Any money coming to me was to be paid after the engineers, measured up the work, made a statement. I believe it was. about the 25th of May that I asked McDonald for a eheck for $350 for McAllister. I asked him if he would advance me—on. account of high water I had to have plenty of feed—I asked him if he would let me have money to pay for it. He said he would,, and it was to be charged to my account. He said he would give-it to me in a few days. Under my contract with McDonald & Pelette they paid all my hired men as I give the orders. The last order given, when Mr. Fitzgerald went down with me, was.
“ ‘Butte, Mont., June 19, ’07,
“ ‘Mr. Alex McDonald, Lime Spur, Mont.
“ ‘Dear Sir: In regard to the money order I gave you for Chas. Johnson, I wish you please give him only one hundred $140.00 instead of the amount I gave money order for. I have other bills to meet at once, so that is the cause of the change in Johnson bill. I hope this will not interfere with any of your plans, and it will do me a great favor. I will see you as soon as I can arrange matters here. With best • regards, I remain,
“ ‘Yours truly,
“ ‘Arthur Durand.’
“I owed Johnson for tools used on the contract and had given an order on McDonald & Pelette to pay him. June 19 was. quite a while after I quit there. I signed the following:
“ ‘Charles M. Johnson,
“ ‘Dealer in Lumber, Wagons and Buggies, Farming Implements.
“ ‘Whitehall, Mont.,-, 190—.
“ ‘Mr. A. McDonald, Lime Spur: I wish you would look after my bill which I sold to Mr. Durand, the bill amounts to two-hundred and twenty-six .226.10. He got another wheeler after-
“ ‘Yous respect.,
“ ‘C. M. Johnson.
“ ‘Pay above bill out of money you will receive from Jno. King on my account.
“ ‘A. Durand.’
“That was the money for the stuff I gave McDonald. I suppose he turned it over to King. I went to McDonald, and told him King was going to quit. I said I would sell them the stuff, and they could do as they pleased. I was not on good terms with King for three weeks. My arrangement was to sell to McDonald. I did not sell it to King.
“Q. Tou had no understanding that it was to be transferred to King? A. Not at the time they took the stuff.
‘ ‘ Q. Then, why this last order—the money coming to me from King? A. That I don’t remember at all.”
The plaintiff testified: “Durand introduced me to Pelette. I asked what was the reason he wasn’t getting the money up to me. He said he had been very busy; that they were expecting Mrs. McDonald out to take charge of the books, and they would get the first payment out—said they would send $350 right away, perhaps the next day, not later than Tuesday—forward that check; that they had taken over the Durand outfit and got everything settled up, so that they could wipe out the Durand accounts, pay them up, and everything was all right, everything Durand owed they were going to settle it up, they would send me one check not later than the following Tuesday, at least $350, and send the balance of the money in a few days. Durand told me he had turned the outfit over to defendants. They sent me no check, and have paid no portion of the account. I talked to Pelette about the order which I wrote myself. I asked him if they had received the order, and he said they had. We got $150 that fall, later on, for something.. I don’t know what it was. I guess there was something there. I think Durand turned it over to Frank Andrus, of the Keystone Grocery, with the understanding that I and the Keystone Grocery
‘ ‘ Q. Now, then, after you had that arrangement with Durand and Andrus, you executed this paper of date August 30, did you? A. I guess that’s the date. I don’t know. That must be correct. I don’t remember what that outfit was. It is described. in there, as near as I can tell. This latter document is as follows:
“ ‘Butte, Mont., Aug. 30th, ’07.
“ ‘We have this day sold to McDonald & Pelette 4 Western Wheelers No. 211%, one small plow, 4 tents, cooking utensils, cooking and heating stoves, 3 scraper slips, consideration $150, receipt of payment is hereby acknowledged.
“ ‘F. B. Andrus.
“ ‘W. E. McAllister.’
“The arrangement was that whatever that outfit was, and whatever was received from it, was to be shared between me and Andrus. That is the only $75 I ever got from McDonald & Pelette. After I went to Lime Spur, I never presented a bill to Durand. I knew Durand went through bankruptcy, and I presented no claim. I never looked to him. I looked to defendants to pay me, because they guaranteed to pay the bill. There is no charge on my books against McDonald & Pelette. It was a straight business proposition. I expected to get my money on the June 17 order.”
Alexander McDonald, one of the defendants, testified that at the time Durand relinqir hed his contract he was indebted to the firm of McDonald & Pelette in the sum of about $200. This witness continued: “Durand came over where I and Pelette was working, and said that he and King wasn’t on good terms; that King was going to take his teams, and wanted me to go over and take an invoice of all the stuff, and quit. He said: ■‘Turn it all over to King. Let him keep it all’ to secure him on the contract, as King went ahead with the work, as the payments were made. I told him all right. I went over and took
Pelette testified: “McAllister came along there, him and Durand, and Durand introduced McAllister; and so he asked me about this order, and I told him I didn’t have much business about the likes of that, but that my partner, I believe, was in Butte that day, and that his wife would be out on Monday and would take charge of the books, and anything that Mr. Durand had coming, if he had anything coming, that we would send in a cheek right away, as soon as the books were straightened up. I have reference to an order from Mr. Durand to pay Mr. McAllister out of any money coming to him. It was the first order. I don’t remember what McAllister said in reply. He did not have long to talk.”
1. It was contended in oral argument in this court by the respondent that we ought not to consider the appeal from the order denying a new trial on the merits for several reasons, the chief one of which is that the record does not disclose that the notice of intention to move for a new trial was ever served. The other objections are extremely technical, and we are of opinion that there is no merit in any of them. "We also think that the one specially noted above should be overruled. The record discloses that “the motion for a new trial was duly presented to the court upon the said notice and argued thereon, and was
2. The only question presented by the appellants is whether the evidence is sufficient to show a contract by novation between the parties. Novation is the substitution of a new obligation for an existing one. (Revised Codes, sec. 4958.) Novation is made (1) by the substitution of a new obligation between the same parties, with intent to extinguish the old one; (2) by the substitution of a new debtor in place of the old one, with intent to release the latter; or (3) by the substitution of a new creditor in place of the old one, with intent to transfer the rights of the latter to the former. (Revised Codes, sec. 4959.) Novation is made by contract, and is subject to all the rules concerning contracts in general. (Revised Codes, sec. 4960.) To constitute a novation by substitution of creditors or debtors, there must be a mutual agreement between three or more parties, whereby a debtor in consideration of being discharged from his liability to his original creditor contracts a new obligation in favor of a new creditor. (29 Cyc. 1131.) To eon
We are of opinion that the motion for a new trial should have been granted. The only testimony tending in the slightest degree to indicate that the parties agreed or intended that Durand should be discharged was brought out on his cross-examination. After he had narrated the entire conversation between MeAllister and Pelette, without a suggestion that the latter agreed to do anything more than pay the order theretofore given, he was asked by counsel for the defendants: “McAllister did not tell Pelette that he was going to look to him entirely for the money, and not to you, did he?” He answered: “He did; yes, sir.” Prior to this he had stated positively that he had given the entire conversation. McAllister does not claim that any such agreement was had, and Pelette’s version of the transaction does not include it. A consideration of the prior and subsequent actions of the parties convinces us that the great weight of the evidence negatives the idea that any such statement was made by the respondent. Prior to the time when McAllister interviewed Pelette, Durand had instructed the appellants to pay respondent the sum of $842.25 as fast as the money became due him; and, after the interview was had, he duplicated the order, stating specifically that the amount was to be paid out of any moneys coming to him upon his contract. The latter order was written by plaintiff’s attorney. According to the testimony of Durand, almost the first question addressed to Pelette by McAllister was whether he had received the orders, and this witness also testified that he thought he had the money coming,
In the ease of Lemans v. Wiley, 92 Ind. 436, the court said: “The rule that this court will not reverse a judgment when the evidence tends to sustain the verdict or finding does not go so far as to authorize an affirmance upon an isolated statement of a witness which is in conflict with other statements of the same witness.” The supreme court of 'Wisconsin in Wunderlich v. Palatine Ins. Co., 104 Wis. 395, 80 N. W. 471, said: “When it appears that the trial court has sustained a verdict upon testimony contrary to the great weight of the evidence, and which is impeached or rendered improbable by other conceded facts in the ease, or is against all the reasonable inferences or probabilities of the ease, this court is bound to, and will, interfere for the relief of the aggrieved party.” In Roberts v. Agnew (Tex. Civ. App.), 103 S. W. 1178, the court of civil appeals of Texas used this language: “It is undoubtedly the duty of an appellate court to award a new trial where the verdict, though not entirely without evidence to sustain it, is so utterly at variance with the real and unexplained facts as that the court can say it is clearly wrong.” (See Jackson v. McNatt, 4 Neb. (Unof.) 55, 93 N. W. 425.) In the case of Howie v. California Brewery Co., 35 Mont. 264, 88 Pac. 1007, this court held that certain statements of witnesses as to the location of a party-wall should be disregarded, where it was apparent from all of their testimony that they had no facts upon which to base their assertion. (See, also, Hamilton v. Monidah Trust, 39 Mont. 269, 102 Pac. 335.)
Reversed and remanded.