141 P. 643 | Mont. | 1914
delivered the opinion of the court.
The defendant Bitter Root Yalley Irrigation Company, a corporation, hereafter referred to as “the company,” at the time of the occurrences out of which this controversy arose, was the owner of a storage reservoir at Lake Como, in Ravalli county, together with the right of way for a canal and a canal in course of construction thereon, extending from the reservoir northward through Bitter Root Yalley. The purpose for which the canal was being constructed was to convey water' to the lands lying along its course belonging to the company, to irrigate them. On October 18, 1909, it entered into a contract with defendant Thomas J. White, under the terms of which the latter agreed to do all the work necessary to complete a portion
The complaint contains two causes of action and seeks recovery against all the defendants. In the first cause of action, after a recital of the facts above stated, it' is alleged, that immediately after entering into the contract, the plaintiffs began the work which they had agreed to perform thereunder, and continued the same until its completion, except when delayed by the defendants; that, in consideration of the completion thereof and the fulfillment of all the terms and conditions of the contract by plaintiffs; the defendants became indebted to them in the sum of $1,678.85; and that no part of this amount has been paid except the sum of $801.35, leaving a balance due of $876.50. Then follow allegations to the effect that, within the time prescribed by the statute and in conformity with its requirements, plaintiffs filed with the clerk of Ravalli county their notice of claim of lien upon the reservoir, canal, right of way, etc., of the company. The prayer demands that plaintiffs have judgment for the balance due, with costs; that the same be declared a lien upon the property of the company; and that the property be sold to satisfy the judgment in case the same shall not be satisfied by Roman and Bennett. At the trial the issues presented in connection with the second cause of action were resolved in favor of the defendants. It is therefore not necessary to state the nature of it or its purpose further than to say that it demanded damages for delay caused plaintiffs by interference by defendants with the prosecution of the work covered by the contract.
The action was commenced on October 5, 1910. The issues having been made up by answers by the defendants, the trial was set for October-, 1911. Upon stipulation by counsel the setting was vacated. Thereafter the date of the trial was fixed for March 18, 1912. After the order fixing the date of trial/ and on February 23, the defendants Roman and Bennett, without leave of court, filed and served upon counsel for plaintiffs a pleading which purports to be an amended answer, “cross-
1. The first contention made is that the court erred in striking out the portions of the cross-complaint and counterclaim referred to above. It is argued that the defendants had the
The case is not mended by the fact that, in resistance to the
2. It is earnestly contended that the court abused its dis-
On March 3, fifteen days after the date set for the trial,
Let it be assumed, however, that Mr. Galen was misled into the belief that there would be a postponement until it was too late for him to communicate with Mr. Roman. It is disclosed
3 It is argued, that when plaintiffs dismissed the second cause of action as to the company and White, the complaint disclosed
4. During the prosecution of the work by the plaintiffs, one
The evidence offered to show the cost of the work done by defendants was also properly excluded, for two reasons: In the
Other contentions made are not of sufficient importance to require special notice.
The judgment and order are affirmed.
Affirmed.