129 P. 323 | Mont. | 1913
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
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
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
It is urged, however, that the record does not show that respondent ever intended to pay appellants’ debt, or that the com
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
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.