295 P. 266 | Mont. | 1930
The complaint is defective in failing to claim any damages for the breach of contract set forth therein and there is no allegation of what the damages consist by reason of the action of the defendant, or that the plaintiff was damaged, or that the defendant refused to deliver either of the rooms claimed by plaintiff to have been rented. (McFarland v. Welch,
The court erred in denying the motion for a nonsuit; while the motion was based upon the ground of a variance in reality the facts under the testimony showed a complete failure of proof. (Sec. 9185, Rev. Codes 1921; American Livestock L. Co. v.Great Northern Ry. Co.,
"A verdict is against law within the meaning of section 6794, Revised Codes, only when it is contrary to the law of *471
the case as given to the jury in the instructions." (Bush v.Baker,
The testimony shows that the premises were operated in violation of the federal prohibition law as a soft-drink parlor or bootleg business. The contract was made for the purpose of renting said premises to operate said business in violation of the law, and it was the understanding of the plaintiff that he was to rent said premises for said purpose and no other, which business was illegal and which made the contract sued upon by plaintiff in his action illegal and he should be denied the right to recover thereunder, and the court erred in not granting a new trial in this condition of the record and the evidence. "Where a contract is illegal, immoral or against public policy, while the agreement is still executory the court will neither compel its execution nor cancel it, nor after it has been executed set it aside and restore the plaintiff to the property or other interests which he has illegally transferred. The parties will be left in the position in which they placed themselves." (Colby
v. Title Ins. etc. Co.,
It was unnecessary to plead the illegality in the answer. (McManus v. Fulton,
Courts will of their own motion take notice of illegal contracts which come before them for adjudication and leave the parties where they have placed themselves. (13 C.J. 507, and cases cited; 6 R.C.L. 823, and Supp.; Oscanyan v. WinchesterRepeating Arms Co.,
With reference to the assignment of error that the contract was contrary to public policy and contrary to express provision of law: In taking this stand appellant has assumed that the contract for the use of the premises for the operation of a soft-drink parlor is one which is for the violation of the prohibition law. These are facts that have not been pleaded or proven and purely an assumption on the part of the appellant without any justification or support in the proof of this case. This court when speaking on the question of the legality of contracts in the case of Haley v. Hollenback,
1. It is first contended that the complaint does not state a[1-3] cause of action in that it fails to allege a breach of contract or in what manner plaintiff was damaged, and further fails to allege that defendant failed to deliver possession of the premises.
The complaint alleges that "plaintiff rented from defendant the front room of the basement of the Park Hotel, known as the dining room, * * *, together with a small room on the east side * * * of said basement, for an agreed price of $100 per month; * * * paid the defendant the sum of $100 for the rent of the above described rooms from January 1, * * * until February 1, 1929," etc. "That on January 2, 1929, plaintiff came to take possession, * * * the defendant refused * * * possession * * * and still refuses to deliver possession of the same to this plaintiff. * * * Defendant also refuses to return to the plaintiff the *475 rent paid * * *; that the whole of said sum is now due, owing and unpaid."
From the foregoing abstract of the complaint it will be seen that it is alleged therein that defendant refused to deliver possession of the premises and, in ordinary and concise language, it alleges facts showing a contract of rental, performance on the part of plaintiff and a breach on the part of defendant. The action is not strictly one for damages for breach of the contract, but rather for the recovery of the amount paid, on failure of consideration.
The pleadings in justice courts are not required to be in any particular form, but must be such as to enable a person of common understanding to know what is intended; the complaint in such court "is a concise statement, in writing, of the facts constituting the plaintiff's cause of action." (Secs. 9638 and 9640, Rev. Codes 1921.) Under these provisions, such a complaint must be construed with great liberality and the plaintiff is required only to state facts sufficient to show the nature of his demand and to enable a person of common understanding to know what is intended. (Woody v. Security State Bank,
Under the liberal construction of pleadings, required by our Codes, whatever is necessarily implied by allegations directly made, or is reasonably to be inferred therefrom, is to be treated as averred directly. (Cramer v. Deschler Broom Factory,
The complaint sufficiently states a cause of action, and no error was committed in overruling the objection to the introduction of testimony.
2. Error is specified in the court's action in sustaining[4] objections to certain questions propounded on cross-examination of plaintiff. These questions had to do with matters antedating the transaction charged in the complaint and did not tend to prove any issue in the case, unless it be with *476 reference to the defense thereafter made, and, if so, they were properly excluded at the time propounded.
A further assignment of error is based on the court's exclusion of an answer to the following question also propounded to plaintiff on cross-examination: "Where were you, Mr. Rhule, from January 4th to February 1st?" The alleged failure to deliver possession of the premises occurred on January 2d, if at all, and it was clearly immaterial where the plaintiff was during the period stated, in so far as this action was concerned.
3. Defendant asserts that the court erred in refusing to grant[5, 6] a nonsuit on the ground of variance which, it is contended, amounted to a failure of proof. This contention is based on the fact that, while the complaint alleged the renting of the dining-room, being the first room on the west side of the basement, and also a small room on the east side of the basement, plaintiff's testimony was only to the effect that he rented the dining-room and paid the $100 as rent on that room for the month of January, 1929. He introduced a receipt given him showing the payment "rent of one month * * * for the month ending Feb. 1, 1929."
While a variance which amounts to a failure of proof is subject to a motion for nonsuit, one which is immaterial and could not have misled defendant to her prejudice in making her defense upon the merits, is, under the provisions of section 9183, Revised Codes 1921, insufficient to warrant a reversal of the judgment. (St. George v. Boucher,
Here, the action was for the recovery, not of possession of the premises, but of the amount paid as rent, because of the failure of the defendant to place plaintiff in possession of the rented premises; the identity of the rented premises was of secondary importance and the variance immaterial, as defendant[7] could not have been misled thereby. Further, the testimony of plaintiff went in without objection, and, if *477
necessary, the complaint may be deemed amended to conform thereto. (Parsons v. Rice,
4. It is next contended that the verdict is against law, in[8, 9] that the jury did not follow the instructions of the court that "unless you believe, from a preponderance of the evidence, that the defendant in this action received $100 from the plaintiff for which she agreed to rent to plaintiff the room on the west side of the Park Hotel, known as the dining room, together with the rear room on the east side thereof, and she refused to turn said room over to plaintiff, then your verdict should be for the defendant as to the plaintiff's cause of action."
It will be noted that, while the instruction contains the insert "together with the rear room on the east side thereof," in effect in parentheses, the singular is thereafter used; "and she refused to turn said room over to the plaintiff." The antecedent of "room" is the dining-room, and the jury might well have understood that the instruction had reference only to the dining-room although mentioning the small room. However, where defendant does not stand upon his motion for nonsuit and introduces testimony he does so at the risk of supplying any deficiency in plaintiff's case (Staff v. Montana PetroleumCo., ante, p. 145,
5. Finally, it is said that the premises described were rented[10] for an illegal purpose, to-wit, the sale therein *478 of intoxicating liquor in violation of the federal Prohibition Act.
The fallacy here is that, in order to hold that the contract was illegal, we must adopt defendant's definition of a "soft drink parlor" as "a term used to describe a place where intoxicating liquor is sold in violation of law."
The record discloses that, with the knowledge of defendant, plaintiff had conducted a "soft drink parlor" in the former barroom of the hotel and that, in December, 1928, that room was abated because of the violation of the Prohibition Law therein by plaintiff. It is deducible from the evidence that plaintiff intended to open a soft-drink parlor in the dining-room, but the term "soft drink" is used in contradistinction to "intoxicating liquor" and there is no suggestion in the record that plaintiff intended, or that defendant thought he intended, to again violate the law, if accorded possession of the dining-room. She merely denied that she rented the dining-room to him; while plaintiff testified that she did but refused to give him possession because she said another party had offered her more money for it.
No reversible error appearing in the record the judgment is affirmed.
MR. CHIEF JUSTICE CALLAWAY and ASSOCIATE JUSTICES GALEN, FORD and ANGSTMAN concur. *479