130 P. 1074 | Mont. | 1913
delivered the opinion of the court.
The plaintiff heretofore brought an action in the district court of Chouteau county to recover upon the same cause of action alleged in the complaint herein. The court sustained a general demurrer to the complaint, and rendered judgment for the defendant for his costs. On appeal to this court this judgment was reversed. (Raiche v. Morrison, 37 Mont. 244, 95 Pac. 1061.) When the cause was remanded to the district court, the plaintiff dismissed it and brought a second action in the district court of Cascade county, where the defendant now resides. The defendant having filed his answer, a trial was had which resulted in a verdict and judgment for the plaintiff. The defendant has appealed from the judgment and an order denying his motion for a new trial. The complaint is substantially a copy of that considered on the former appeal. A statement of the allegations constituting plaintiff’s cause of action will be found in the opinion thereon delivered. They need not be restated here.
In his answer the defendant denied that the contract to repurchase the stock was executed and delivered to plaintiff in consideration of the sale to him of the stock and as an inducement to the purchase as alleged in the complaint, or upon any consideration, or that plaintiff had suffered any damage by reason of defendant’s failure to comply with the terms thereof. II* admitted all the other allegations in the complaint. The contention is now made that the evidence is insufficient to justify the verdict. On the former appeal the contract here in question was classed as an option contract, or an option, and we think this characterized it correctly. Under the rule applicable to such •contracts, when the option to buy or sell is based upon a consideration moving to the promisor, the promisee has the exclusive right to sell or buy during the time specified in the contract. He may or may not exercise his option, yet the contract is
This brief statement, by way of preliminary, of our view of the rule of law applicable, clears the way for the determination of the contentions made by counsel for defendant. He insists that the evidence is insufficient to sustain the verdict, (1) in that it does not show that there was any consideration for the option; and (2) in that it fails to show that plaintiff suffered any damage. At the commencement of the trial, after a colloquy between the court and counsel, it was determined that, in view of the admissions in the answer, the burden of proof was upon the defendant to show want of consideration. Thereupon counsel for defendant introduced his evidence, which consisted of the testimony of the defendant himself, in connection with the option contract and a receipt for the purchase price of the stock, introduced as exhibits. While he testified that the option was not given until two or three days after the sale and was the result of subsequent negotiations wholly disconnected with the sale, it appears that the receipt and option both bear the same date, viz., September 18, 1903, the day upon which the sale was made. This fact he did not undertake to explain. His testimony was in several respects self-contradictory and confused. The plain
In considering this feature of the case, we have proceeded upon the assumption that the question of consideration was a material issue, requiring the introduction of evidence and a finding by the jury thereon. Under the allegations made in the complaint which were admitted in the answer, this was not necessary. It is admitted that the option was given by the defendant, and that it was accepted at the expiration of the time limit named, with a tender of the stock by the plaintiff which was refused by the defendant. It is apparent, therefore, that plaintiff would have been entitled to a judgment on the pleadings for nominal
No evidence was introduced by either party as to the value of the stock at the time the plaintiff accepted the option, or at any time before or after that time, other than a statement made by the defendant when counsel for plaintiff tendered him the stock and demanded payment of the purchase price. The latter testified that the defendant, upon refusing to accept it, said;
Counsel has devoted much space in his brief to a discussion of the measure of damages which he insists the court should have given to the jury. We agree, with him that the rule prescribed
The judgment and order are affirmed.
Affirmed.