130 P.2d 685 | Mont. | 1942
Lead Opinion
This is an appeal from a judgment entered in favor of the *394 plaintiff, the Pioneer Engineering Works, wherein the plaintiff was allowed to recover possession of a gravel crushing machine in a claim and delivery action. Briefly stated, the facts are these:
The plaintiff sold the machine to the defendant under a conditional sales contract, retaining title with the right to terminate the contract and repossess the property upon the failure of the defendant to pay the installments of the purchase price. Defendant refused to make any payments after the first one upon the ground that the machine failed to do the work it was warranted to do. Thereupon plaintiff brought this suit for the recovery of the possession of the machine. Defendant resisted the action by pleading a counterclaim for damages based upon the alleged failure of the machine to meet the warranties. The trial court refused to hear evidence upon the counterclaim. This refusal is assigned as error.
It is well to state here that, while defendant has denominated[1] his claim for damages as a counterclaim, yet the rule is that the character of a pleading is determined by its substance rather than by the name given it by the pleader. (Callender v.Crossfield Oil Syndicate,
Simply stated, the principal question in this case is whether[2] a cross-complaint for damages is a proper cause of action to be tried in a claim and delivery action for the possession of the machine. The trial court held that, since all the plaintiff asked for was possession, the claim for damages did not and could not "tend to diminish or defeat the plaintiff's recovery."
To affirm the court's holding we would be obliged to determine that a cross-complaint must, as a prerequisite to its propriety, operate to diminish or defeat the plaintiff's recovery.
The cross-complaint statute, section 9151, Revised Codes, does not in so many words prescribe this requirement. The pertinent part of that section is as follows: "Whenever any *395 defendant to an action desires any relief against any party relating to or dependent upon the contract, transaction, or subject-matter upon which the action is brought, or affecting the property to which the action relates, or whenever the judgment in such action may determine the ultimate rights of defendants to an action as between themselves, any defendant may, in addition to and in his answer, file at the same time, or subsequently by permission of court, a cross-complaint against all parties to such action."
The trial court was prompted to rule as it did because of the interpretation placed upon this section by this court inCallender v. Crossfield Oil Syndicate, supra, and Mills v.Pope,
This statement was taken from the California case of Yorba
v. Ward,
Our statute (sec. 9151) has been modeled after the California statute, although the wording is slightly different. The California statute, sec. 442, Code Civ. Procedure, is in the following language: "Whenever the defendant seeks affirmative relief against any party, relating to or depending upon the contract, transaction matter, happening or accident upon which the action is brought, or affecting the property to which the action relates, he may, in addition to his answer, file at the same time, or by permission of the court subsequently, a cross-complaint." It is to be noted that the words "matter," "happening" and "accident" are not in section 9151. These words, however, do not compel a different interpretation of our statute.
In the case of Martin v. Hall, supra, the court based its decision upon the word "transaction." That word is used in our statute and has been given a very liberal interpretation. (Scott v. Waggoner,
The reasoning and logic of the California court in overruling the case of Yorba v. Ward appeals to us as sound. In the case of State ex rel. Union Central Life Ins. Co. v. DistrictCourt,
In the solution of this case we are necessarily confronted[3] with the statute in regard to counterclaims. Those sections and the cross-complaint sections offer an opportunity to the defendant to obtain affirmative relief against the plaintiff. To a large extent they are duplicate remedies. David R. Mason, Professor of Law at the Montana State University, in an article entitled "Counterclaims in Montana" (Montana Law Review, Spring 1942, page 33), has, with scholarly excellence, traced the history of the use of counterclaims under our statutes. He points out the trend toward liberality in the use of both cross-complaints and counterclaims. It would seem that the legislature might well consolidate our counterclaim and cross-complaint remedies. However, both remedies are upon our statute books and until the legislature sees fit to be more definitive, we must give effect to both in the manner which appears to us to be consistent with the legislative intent.
Because of the holding on the main question, the other questions in this case require no consideration. The judgment is reversed and the cause remanded for a new trial.
MR. CHIEF JUSTICE JOHNSON and ASSOCIATE JUSTICES ERICKSON, ANDERSON and MORRIS concur. *398
Addendum
It is contended that attorneys relying upon the prior decisions of this court have advised their clients accordingly and that litigants may have relied upon those decisions in making conditional sales contracts, and that to now change the law and make it applicable to past transactions would work an injustice. To adopt the rule contended for by plaintiff and apply it to this case would mean that lawyers could advise their clients to breach their contracts with respect to property sold under conditional sales contracts, and notwithstanding this fact the possession of the property might be recovered without the right of the vendee to recover damages in the same action for such breach of contract. The rule against the change of judicial decisions as to past transactions was intended to protect the rights of the innocent under contracts made in reliance upon those decisions. The rule was never designed to aid a wrongdoer. We do not presume to say that the plaintiff here is a wrongdoer, but only say that the allegations *399 set up in the cross-complaint charge plaintiff with wrongdoing, resulting in damages to the defendant. This is a subject matter which we now hold may be litigated under the cross-complaint notwithstanding former decisions to the contrary which have been expressly overruled.
The motion for rehearing is denied.
MR. CHIEF JUSTICE JOHNSON and ASSOCIATE JUSTICES ERICKSON, ANDERSON and MORRIS concur.
Addendum
The point relied upon is that we overlooked determination of a point of law raised on motion for rehearing. This is not a sufficient ground for recalling the remittitur. (Kimpton v.Jubilee Placer Mining Co.,
We have given consideration to the point and are satisfied that the cross-complaint states facts sufficient to entitle defendant to at least some relief against plaintiff and that being so evidence thereunder should be received. *400