124 P. 273 | Mont. | 1912
Lead Opinion
delivered the opinion of the court.
This action was brought to recover money due for work and labor performed. The complaint alleges that during October, November and December, 1909, plaintiff worked for the defendant Anaconda Copper Mining Company and earned in such employment $290; that in order to secure credit for merchandise which he needed, he assigned his claim to the defendant Hen-, nessy Mercantile Company, with the understanding that when the money was collected, the mercantile company should deduct the amount of credit extended and pay over to plaintiff the balance; that plaintiff received but three dollars on account of credit extended'to him, but that defendant Anaconda Copper Mining Company and defendant Hennessy Mercantile Company each refuses to pay to him any sum whatever. It is further alleged, upon information and belief, that the defendant Anaconda Copper Mining Company has paid the money over to defendant Hennessy Company, and that the Hennessy Company refuses to pay the same or any part thereof to plaintiff. Each
1. That the complaint states a cause of action in favor of plaintiff and against the defendant Anaconda Copper Mining
There is not any attempt made to state a cause of action as against the Hennessy Mercantile Company; but, as said above, that company was properly made a party defendant; and so far as the general demurrer of the Anaconda Copper Mining Company or the general demurrer of the Hennessy Mercantile Company is concerned, it should have been overruled.
2. The so-called special demurrers are not available to any of
3. It is earnestly insisted by counsel for respondents that the complaint does not state a cause of action in favor of plaintiff and against the defendant Hennessy Company, and with this we agree. But they also insist, with equal earnestness, that there is a misjoinder of causes of action. As said
The judgment in favor of defendant Hennessy Company is affirmed. The judgment in favor of defendants Hennessy Mercantile Company and Anaconda Copper Mining Company is reversed, and the cause is remanded with directions to overrule the demurrer interposed by each of those defendants. Each party prevailing in this court will recover his costs.
Dissenting Opinion
I dissent from that portion of the foregoing opinion which imposes upon the appellant any of the costs of appeal.