18 Mont. 398 | Mont. | 1896
The record does not disclose upon which ground the demurrer was sustained. Appellants argue that it must be presumed that it was sustained upon the formal ground, to-wit, the second one set out in the demurrer, and cite Kleinschmidt v. Binzel, 14 Mont. 31. But this is not important, for the second ground of the demurrer to the answer is not one allowed by the Code. (Code Civil Procedure, 1887, §§ 92-94.)
The original contractor with the plaintiff was Gates, Townsend & Co. The company has assigned its rights to the other defendant, Florence K. Gates. We know of no reason why the assignee, Florence K. Gates, may not set up the fraud in the original contract, and rely upon the real contract for the rights which it appears w-.re assigned to her.
Reversed.