Penwell v. Flickinger, 129 P. 323

Penwell v. Flickinger

129 P. 323 | Mont. | 1913

MR. JUSTICE SANNER

delivered the opinion of the court.

The original complaint in this action was filed on September 16, 1910. Issue was joined, but afterward, and on January 26, 1911, an “amended and supplemental complaint” was filed, alleging, in substance, that in June, 1910, defendants agreed to sell .to the Beaverhead Ranch Company, a corporation, a certain automobile, for which they were fully paid in the sum of $956.50; that they never delivered the automobile and never returned the purchase price or any part of it, though demanded so to do; that on August 6, 1910, plaintiff paid said Beaver-head Ranch Company the full sum of $956.50, and said company “did heretofore duly make, execute and deliver to the plaintiff herein a full and complete transfer and assignment of its claims and demands against the defendants herein growing out of the transactions hereinbefore alleged, and plaintiff now is the owner and holder of said claims and demands.” The answer admits all the allegations of the amended and supplemental complaint, except it alleges that the defendants sold the machine to the company, through the plaintiff as its agent and representative; denies any demand by the company for a return of *532the money paid; denies nondelivery of the car, and disclaims any knowledge of plaintiff’s payment to the company or its assignment to him. A reply was filed denying the affirmative matters set forth in the answer. The case was tried to the court sitting with a jury. There was a verdict and judgment for the respondent for the full amount claimed, and from that judgment this appeal is taken. The errors assigned are the giving and refusal of certain instructions, including, among those refused, a direction to find for the appellants; and the question presented here is whether upon the case made the respondent, was entitled to recover.

So much of the evidence as was deemed necessary to raise the matters of law involved is before us by bill of exceptions incorporated in the record. This evidence tended to show the agreement as alleged between the Beaverhead Ranch Company and the appellants; the payment by the company to the appellants; their failure to deliver the ear or to return the money notwithstanding demand; the payment by respondent to the company in August, 1910; the commencement of this action in September, 1910, and the company’s assignment in January, 1911; also that respondent’s act was without any request from the appellants and against the express dissent of one of them; that respondent was an officer of the company, sustained friendly relations with it, and did not like to see it lose any money on account of this transaction with appellants. Touching this matter the respondent himself testified: “I had represented to the Beaverhead Ranch Company that the thing to do was to buy this particular car from these particular people; I sort of stood sponsor for the whole transaction, and the Beaverhead Ranch Company had paid out over $900 and they had not got any car. They were out the money and I was largely responsible for it, I supposed. At any rate, I felt so, and I was naturally somewhat exercised about it, and of course I told defendant Flickinger very plainly how I felt about it. I will state that in the meantime the Beaverhead Ranch Company were out the money and did not have any car. I went to Butte and bought them a car, an Hupmobile, that cost $161 less than the car we bought *533from Flickinger & Strong. I paid for that car ont of my own pocket and gave the Beaverhead Ranch Company that car and $161, so that they were entirely reimbursed for all they were out. I was the only one that was out.”

That the respondent proceeded under a delicate and praiseworthy sense of business ethics may be granted; but that he was [1] under no legal obligation to make good the default of the appellants and that he did so without their authorization are facts patent upon the face of the record. Equally certain is it that there was no subsequent ratification or promise to repay, and there is not a suggestion in the record of any oral assignment of its claim from the company to the respondent when he made the payment, or of any understanding that it should be assigned or kept on foot for his benefit. Under such circumstances the general rule is that the payment extinguishes the debt, at least so far as the creditor is concerned. (30 Cyc. 1183, 1121; note to Crumlish’s Admr. v. Central Imp. Co., 23 L. R. A. 120; Martin v. Quinn, 37 Cal. 55.)

Now, the question here is not whether by the respondent’s act [2] the debt became extinguished as to the debtor, but what did the respondent take by virtue of the assignment here pleaded? This assignment is a formal written instrument, given and dated nearly five months after the respondent’s payment to the company and nearly four months after the commencement of this action, and it purported in consideration of $956.50, “heretofore paid by Lewis Penwell,” to assign to him such claims, demands or causes of action as the company then had by virtue of the premises. But if, when the payment was made, the obligation was extinguished so far as the- company was concerned, it had not on January 4, 1911, any claims, demands or causes of action which it could assign, and the respondent took nothing by virtue of the assignment. (Tanner v. Bowen, 34 Mont. 121, 115 Am. St. Rep. 529, 9 Ann. Cas. 517, 7 L. R. A., n. s., 534, 85 Pac. 876; Moran v. Abbey, 63 Cal. 56; Crystal v. Hutton, 1 Cal. App. 251, 81 Pac. 1115.)

It is urged, however, that the record does not show that respondent ever intended to pay appellants’ debt, or that the com*534pany ever accepted respondent’s act as a discharge of appellants’ obligation. We think otherwise. If the intention of the respondent or the company had been the one to relieve and the other to be relieved of an inconvenient situation due to. the lack of a car when a car was needed, different and more obvious means would doubtless have been employed. But respondent not only bought the company a ear, he also paid to it a sum of money equal to the difference between the cost of the car he bought and the one ordered from appellants, all of which the company received and kept; and thus, as he himself said, it was ‘ ‘ entirely reimbursed. ’ ’

Finally, it is contended that since the answer contains no affirmative plea of payment, the appellants should not be heard to say that respondent’s act operated as a discharge. So far as the complaint disclosed, the action was on the assignment of a valid, existing claim, and the burden was on the respondent to sustain his action as laid. When the evidence disclosed, what [3] the complaint did not, that the assignment was made under circumstances destructive of its force as a cause of action, that situation became as available to appellants as though a special, plea to the same effect had been interposed. (Capital Lumber Co. v. Barth, 33 Mont. 94, 81 Pac. 994; Prosser v. Montana C. Ry. Co., 17 Mont. 372, 30 L. R. A. 814, 43 Pac. 81.)

The judgment is reversed and the cause remanded to the district court to enter judgment that the plaintiff take nothing and that defendants have their costs in this action incurred.

Reversed and remanded.

Mr. Chief Justice Brantly and Mr. Justice Holloway concur.