*1 WORKS, PIONEER ENGINEERING Inc., Respondent, Appellant. McCONNELL, (No. 8,294.) (Submitted April 14, 1942. Decided June (2d)

[130 160.] *2 George Angland, Appel Mr. E. Hurd and Mr. Emmett C. for lant, original argued an a supplemental brief, submitted and orally. the cause

Messrs. M. H. Mr. Kline, Shea, John James T. C. Roberts John Kline, Respondent, brief; Marriott a Mr. submitted argued John M. orally. Kline the cause Acher,

Mr. W. D. Rankin Arthur P. of Counsel for Respondent Rehearing. on Motion for

MR. JUSTICE ANGSTMAN delivered the court. appeal is an from of the

This a entered favor Works, plaintiff Engineering wherein the Pioneer plaintiff, crushing machine gravel recover was allowed to Briefly stated, the facts delivery in a claim and action. these: defendant under machine to the sold the contract, retaining title sales

conditional upon the repossess the contract terminate pur- installments of the pay failure of the defendant after payments refused to make price. Defendant chase do machine failed to ground that the first one Thereupon brought work it was warranted to do. machine. recovery possession of the of the suit for the by pleading counterclaim Defendant resisted the machine to alleged failure of the damages based evidence refused to hear The trial court meet the warranties-. assigned This refusal is error. as upon the counterclaim. that, has denom- while defendant is well to state here It counterclaim, yet inated his claim *3 by its pleading is of a determined is that the character rule by pleader. it the by name rather than the substance 263, Syndicate, 275 Pac. (Callender v. Oil Crossfield if by parties, both defendant’s 273.) Therefore, as admitted way by case, must be damages proper in this claim will it as such here. cross-complaint and we treat of is whether principal question in this stated, the case Simply damages proper cause of cross-complaint for delivery action for the tried in a claim to be all that, held since the The trial court the machine. damages did possession, claim for not for was the asked recovery.” plaintiff’s diminish or defeat not “tend to could obliged holding to deter- we would affirm the court’s must, prerequisite pro- its as a cross-complaint that a mine recovery. plaintiff’s operate diminish or defeat priety, Codes, 9151, Bevised cross-complaint statute, section requirement. many prescribe this words not so does any “Whenever as follows: part that section is pertinent 395 any against party defendant to an action desires relief transaction, relating dependent upon contract, or or subject-matter affecting upon brought, which the action is or relates, to which or whenever the the action may rights in such action determine the ultimate themselves, any defendants to an action as between defendant may, answer, time, or addition to and file the same his cross-complaint subsequently by permission court, a parties all to such action.” prompted trial because of court was to rule it did interpretation by placed upon this section this court Syndicate,

Callender v. supra, Pope, Oil and Mills v. Crossfield 569, 485, 4 (2d) Mont. Pac. said wherein the court ‘‘ defeat, overcome, must to some extent or affect plaintiff’s action, lessen, modify, cause of or interfere with ’’ sought by This statement was taken from the California of Yorba v. case Ward, 109 107, 48, Cal. 38 P. 41 Pac. 793. That decision was based 9151, supra. statute similar section Since time California court has overruled the Yorba Case and (Hanes the decisions Coffee, based it. 212 Cal. 777. Cohn, 619, Trust Co. v. 214 Cal. California (2d) 297; Hall, Martin 219 Cal. last case cited, supreme court of California said: quiet

“Where a by title action all claims directed at made defendant instrument, under a written would have brought been defendant’s claims under said instru- ment, quiet the claim of title and the claim of defendant for breach of said instrument are necessarily related the same ‘transaction’ within the mean- ing of section Although Code of Civil Procedure. complaint is in the form, alleging plaintiff’s usual brief simply *4 title possession, setting ‘transaction,’ forth no this is not conclusive. ‘The facts surrounding the cause of action the form of determinative of what (California constitutes the transaction.’ Trust Co. v.

396 cases, together,

Cohn, supra.) of the two cited taken The effect Meyer Quiggle, reasoning v. disapprove of advanced is to Ward, 107, 109 38 495, 40, 140 74 and Yorba v. Cal. Cal. Pac. 793, they far ‘transaction’ 48, Pac. Pac. so dealt (California Trust v. cross-complaint statute. clause of the 297.) 619, page 625, The relief Cohn, 214 Cal. plain sought cross-complaint need not diminish or defeat the on relief demanded recovery, may be distinct from the tiff’s but (Hanes Coffee, supra).” (And Ban by v. see Remedies, Year Pleading, & Vol. Ten croft Code Practice 449.) Supp. seq., 220 et sec. (sec. California 9151) has been modeled after the

Our statute slightly The Cali- statute, although the'"wording is different. Procedure, in the follow- statute, 442, Civ. fornia sec. Code affirmative ing language: “Whenever the defendant seeks con- party, relating depending or against any upon which matter, happening or accident tract, transaction which the affecting brought, the action is or answer, at the relates, may, in addition to his file he subsequently, by time, permission same or court “matter,” the words cross-complaint.” It is to noted that These 9151. “happening” are not section and “accident” interpretation of however, compel a different do not words, statute. its deci Hall, supra, court based Martin v. In the case of is used in our That word “transaction.” upon the word sion (Scott interpretation. very given a liberal and has been statute 1916C, A. 536, 139 Pac. L. R. Waggoner, In the Mulcahy Duggan, 67 Mont. language used the case approved the Mulcahy court Case this 30, 34 671. Story, 100 Cal. Co. v. Story, etc., Commercial limited is not “The transaction language is as follows: That entire includes the complaint, forth in the set to the facts the business parties conduct of the acts and mutual series of basis of formed the between them proceeding agreement.” *5 overruling reasoning logic court in of the California In us sound. the case appeals Yorba Ward to

the case v. of Court, Central Ins. Co. District State ex rel. Union Life application an- (2d) 491, of the rule Syndicate, supra, was Oil nounced in Callender Crossfield respects. in part disaffirmed We now re-affirmed some adhering and others holding overrule the the Callender Case extent cross-complaint must to it to effect that a some to defeat, affect cause action. plaintiff’s overcome interpretation. with open such an Confronted statute to other conclusion cases, the district court could reach no those overruled, follows hereby cases are it than did. Since those reversed. judgment that the the court based thereon must be are necessarily the solution of this we confronted case regard with the to Those sec statute in counterclaims. cross-complaint opportunity tions and the sections offer an the defendant obtain affirmative relief they large duplicate extent remedies. David R. Ma son, University, in Professor of Law at the Montana an State (Montana article entitled “Counterclaims in Montana” Law Review, Spring page has, excellence, 33), scholarly history traced the of the use of counterclaims under points liberality in the use statutes. He out trend toward cross-complaints both and counterclaims. It would seem legislature might well consolidate our counterclaim that the However, both remedies are remedies. legislature our statute books and until the sees fit give manner definitive, must effect both more we legislative intent. appears to to be consistent with the us ques- holding main question, on the the other Because of no require case consideration. tions for new trial. reversed and the cause remanded and Associate Erick- Justices Justice Johnson Chief and Morris concur. son, Anderson

OPINION ON MOTION FOR REHEARING

(Filed 24, 1942.) November MR. JUSTICE ANGSTMAN delivered of the court. rehearing

On motion for that t he made foregoingopinion operate should be made prospectively only application and that past it should have no transactions. Plaintiff relies the rule announced in Montana Horse *6 Railway Products Co. v. Great Co., Northern Mont. (2d) 919, and Supply Abell, Continental Co. v. 95 Mont. (2d) 133, 24 Pac. jurisdic and kindred eases from other tions. We contention, have this but in consideration to opinion rule for the contended does not affect this case. point prior under consideration here as to which decisions of this court were overruled has to do with remedial or procedural question, and not with substantive or vested property right. attorneys upon

It is contended relying that prior the de- cisions this court have advised their accordingly and clients litigants may upon making that have relied those decisions in contracts, conditional change sales that now law and to the applicable past and make it transactions work an would in- justice. adopt plaintiff the rule for by contended apply lawyers to this case would mean advise could respect their clients to breach with their contracts contracts, notwithstanding sold sales under conditional this property might fact the be recovered without the of the vendee to recover in the action for such breach same of contract. The rule judicial past change of decisions as to was in- transactions protect rights under tended innocent contracts never made in reliance those decisions. The rule was presume say designed wrongdoer. to aid We do not wrongdoer, only allega- plaintiff say here is a that the cross-complaint charge wrong- set up tions subject This doing, resulting damages defendant. under the cross- may litigated matter which we now hold notwithstanding contrary former decisions to the expressly been have overruled. rehearing The motion for denied. Cheep Erick- Justice Johnson Associate Justices Morris concur.

son, Anderson ON MOTION OF FOR RECALL REMITTITUR

(Filed 24, 1942.) December rehearing Per Curiam: action after motion was denied and remittitur issued filed a motion remittitur affirm the to recall the and to the district court. point relied overlooked determination that we rehearing. This is

of a. of law raised on motion ground recalling (Kimpton the remittitur. sufficient Co., Mining Jubilee Placer

motion But were we consider motion must be denied. not be original of our would on its the result merits *7 upon by plaintiff is that point changed. now relied question whether cross- passing we overlooked sufficient to constitute states facts cause against plaintiff. Plaintiff con in favor of defendant judge pass did it is insufficient. The trial tends that not. sufficiency its we likewise did satisfied We have consideration entitle de- states facts sufficient to being least some fendant to be received. should thereunder so evidence