122 P. 284 | Mont. | 1912
delivered the opinion of the court.
The complaint in this action alleges that on or about the tenth day of January, 1911, the plaintiff sold and delivered to the defendant at his special instance and request certain stock cattle at an agreed price of $375; that the defendant has not paid the amount or any part thereof. The answer denies each and every allegation of the complaint. The district court of Gallatin county tried the cause without a jury, and, after making findings of fact and drawing conclusions of law in writing, entered judgment for the plaintiff in accordance with the prayer of the complaint. Defendant appeals from the judgment and from an order refusing to grant a new trial.
It appears that on January 10, 1911, a so-called “combination sale” of livestock was held at a ranch in Gallatin county about five miles from the city of Bozeman. At this sale the defendant purchased fourteen head of cattle at an agreed price of $375. The advertised terms of sale were: “Ten months will be given on bankable note. Interest at 8% from date.” The sale was held in the name of one Stucky, but the cattle purchased by the defendant were the property of plaintiff. After the defendant had bid in the fourteen head of cattle, he went to plaintiff, and said: “I gave my note to Mr. Overstreet [the clerk of the auction sale] signed by myself; that note is good, isn’t it?” Plaintiff replied: “I don’t know. If it is bankable, it is.” Defendant then said: “If I get Frank [his brother] to sign it with me, that will make it bankable.” And plaintiff answered: “I don’t know; but, if not, you will have to see that a note is given to me that is bankable.” Defendant then remarked, “I will leave the stuff here until I give you a bankable note”; and plaintiff “told him to take the stuff away if he would make it bankable”; and further said: “I am coming to town to-morrow and we will fix it up.” Plaintiff also testified: “He had already made out a note to John Stucky. Mr. Overstreet had that and Mr. Overstreet made out another one to me. I took them to town with me, and took them to the butcher-shop. The old note he tore up, and I said, ‘You
John F. Collett testified: “I had a conversation with Bohart on the 15th of January about settlement. I said: ‘We came down to see about the note.’ ‘Well, ’ he said, ‘I supposed that sale was over.’ I said: ‘Part of it is over and part of it is not.’ He said: ‘The note is in here. You can have it. I can’t get any other signer on it. You can sign it if you want to. ’ At the sale it was annoimced that there was no discount for cash.” After
“(5) That after John Stucky informed defendant that said cattle belonged to plaintiff, and before defendant took possession of said cattle, plaintiff stated to defendant that, to obtain the credit offered at said sale, defendant must execute and deliver to plaintiff a promissory note, with surety or sureties if necessary, so that such note would be purchased by the banks at Boze-man, Montana.
“(6) That plaintiff unconditionally delivered the possession of said stock cattle purchased by defendant at said sale upon defendant’s promise that he would execute and deliver to plaintiff a promissory note, with surety or sureties if necessary, so that such note would be purchased by the banks at Boseman, Montana.
“(7) That the promissory note signed by defendant individually which defendant offered to plaintiff in payment for said cattle was not a bankable note, as that term was understood by the parties at the sale, and did not comply with the promise under which defendant had obtained the possession of said cattle from plaintiff.
“(8) That defendant has failed and refused to execute and deliver to plaintiff a bankable note as that term was understood by the parties at said sale in payment for said cattle, and has not complied with the promise under which he obtained possession of said cattle from plaintiff.”
1. Every question of fact in the case must be considered as
It is quite evident from all of the testimony in the instant ease that the parties contemplated something more than that the defendant should give his own promissory note unconditionally. The condition was that the note should be bankable either because of the individual responsibility of the maker or of comakers or indorsers. Had they intended otherwise, the word “bankable” would not have been employed in the advertisement of the sale. The defendant knew this before he took the cattle away. He was so informed, not only by the printed notice of sale, but by the plaintiff himself. He was told that the note tendered by him would not be accepted unless it was bankable paper, and he undertook to comply with the condition. What is the meaning of the word “bankable” in this particular instance? All of the facts and circumstances surrounding the transaction are to be taken into consideration in answering the inquiry. The plaintiff desired to sell his cattle. No discount for cash was to be allowed. Why? Manifestly because it was intended that the cattle should be sold for cash, or its equivalent. The bankable notes, if any were taken, were to be convertible into cash without
Was the defendant’s individual note bankable? He tacitly
But it is said that the testimony of the plaintiff concerning the
The appellant bases his claim that the note was bankable upon the authority of the case of E. P. Allis Co. v. Madison E. L. H. & P. Co., 9 S. D. 459, 70 N. W. 650. The facts in that ease were these: The plaintiff sold certain machinery to the defendant for the agreed price of $3,500, payable as follows: $500 in cash and the balance, in equal payments, due in six, twelve, and eighteen months, respectively, all of said deferred payments to be secured by “bankable paper” drawing seven per cent interest. Pursuant to the agreement the defendant sent
But we are unable to concur in the view of the law taken by the South Dakota court. The result of it is that the notes were bankable in theory, but not in fact. The Century Dictionary defines
We conclude, therefore, that there is ample evidence in the record to justify the finding that the note in question was not bankable in Bozeman. The condition of its acceptance was that it should be convertible into cash. It was not so convertible. Therefore, the condition upon which credit was extended was not fulfilled by the defendant, and plaintiff could sue at once as for cattle sold and delivered.
The judgment and order are affirmed.
'Affirmed.