198 P. 449 | Mont. | 1921
prepared the opinion for the court.
Appeal by defendant from a judgment in favor of plaintiff entered on a directed verdict, and from the defendants’ motion for a new trial.
The plaintiff alleges that “on or about the 14th of October, 1916, the plaintiff and defendants mutually agreed that the defendants should deliver to the plaintiff two carloads of potatoes, about 800 sacks and 100,000 pounds, same to be free from frost, and that the plaintiff should pay therefor on delivery the sum of $1.30 per hundredweight”; that on or about the 1st of November, 1916, plaintiff offered to receive and pay for the potatoes and fully perform the condi
The issue taken with the complaint by the demurrers and by the objections to the introduction of evidence is to the effect that the damages, if any, are special, and that evidence of special damages could not properly be admitted under the complaint; that no time was named or otherwise fixed for the delivery of the potatoes, and that any damages awarded would be conjectural and speculative.
Objection is also made to the admission of certain evidence. These questions may not arise on a retrial of this cause. We will say, however, that the facts as presented in this record are not sufficient to justify the admission in evidence of plaintiff’s exhibits as against the defendant John B. Yallance, but that the said exhibits were properly admitted in evidence as against the defendant Fred Yallance. That the court erred in directing a verdict for the plaintiff is .apparent from the foregoing discussion.
For the reasons given in the foregoing opinion, it is ordered that the judgment and order appealed from be reversed and the cause remanded for a new trial.
Reversed and remanded.